DU v Jackson [2024] QCA 122 | Case summary

SUPREME COURT OF QUEENSLAND

CITATION: DU v Jackson (DCJ) [2024] QCA 122

PARTIES: DU / (appellant) / v / JACKSON (DCJ) / (first respondent) / COMMISSIONER OF POLICE / (second respondent)

FILE NO/S: Appeal No 11739 of 2023

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2023] QSC 185 (Martin SJA)

DELIVERED ON: 21 June 2024

DELIVERED AT: Brisbane

HEARING DATE: 6 February 2024

JUDGES: Bond and Dalton JJA and Williams J

ORDERS: The application for leave to appeal is allowed.The application to adduce fresh evidence on appeal is dismissed.The appeal is allowed and the orders below (except for the costs orders) are set aside.The Registrar is directed to issue the application filed by the appellant on 12 June 2023 on the condition that the resulting proceeding is stayed until the appellant amends the application so that it seeks only an order in the nature of certiorari on the ground that the first respondent misapprehended his function in hearing the appeal made in relation to the police protection order against him, or a declaration based on that ground.No order as to costs of the appeal.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – NATURE OF APPEAL – where the appellant filed an application for judicial review of the first respondent’s decision to dismiss his appeal regarding a protection order made against him in the Magistrates Court – where a Supreme Court Registrar referred the judicial review application to a Judge pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld) – where the judge below refused leave to issue the originating application – whether the decision below was a decision other than a final decision in a proceeding – whether the Court is hearing an appeal in the strict sense or an appeal by way of rehearing / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – whether the Court should exercise its discretion to hear the appeal by way of rehearing to allow the appellant to introduce fresh evidence – whether the fresh evidence would probably have an important influence on the result of the appeal / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – where the appellant’s application for judicial review before the judge below alleged the first respondent acted in bad faith and erred in law – whether the application for judicial review which the appellant sought to have the Registry issue disclosed a reasonable cause of action / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN ALLOWED TO BE RAISED ON APPEAL – where for the first time, on appeal, the appellant argued the first respondent did not conduct an appeal by way of rehearing as he did not review all the evidence before the Magistrate and come to his own conclusions – where the point raised for the first time on appeal involved only a question of law and was apparent on the material before the judge below – whether the Court should consider the new point on appeal / ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL ERROR – where the appeal the first respondent conducted was an appeal pursuant to s 168 of the Domestic and Family Violence Protection Act 2012 (Qld) – whether this is an appeal by way of rehearing – whether there was an arguable case that the first respondent did not conduct a real review of the evidence and did not form his own view of it – whether the appellant demonstrated an arguable case that the first respondent misapprehended the nature of his task on appeal such that there was jurisdictional error / Domestic and Family Violence Protection Act 2012 (Qld), s 164, s 168, s 169 / Judicial Review Act 1991 (Qld), s 41 / Uniform Civil Procedure Rules 1999 (Qld), r 15, r 765 / Bozson v Altrincham Urban District Council [1903] 1 KB 547, cited / Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62, cited / Carr v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246; [1981] HCA 20, considered / De Innocentis v Brisbane City Council [2000] 2 Qd R 349; [1999] QCA 404, disapproved / Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54, considered / Engelbrecht v DPP (NSW) [2016] NSWCA 290, cited / Ex Parte Britt [1987] 1 Qd R 221; [1986] QSC 325, considered / Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, considered / Hall v Nominal Defendant (1966) 117 CLR 423; [1996] HCA 36, considered / Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 224 FLR 348; [2009] SASC 77, considered / Kambarbakis v G & L Scaffold Contracting P/L [2008] QCA 262, considered / Kitto v Medalion Homes Ltd (in liq) [2000] QCA 288, considered / Licul v Corney (1976) 180 CLR 213; [1976] HCA 6, considered / LPDT v Minister for Immigration (2024) 98 ALJR 610; [2024] HCA 12, cited / McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, distinguished / McEwan v Merrin (Magistrate) [2023] QSC 6, cited / Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACSR 362; [1994] 2 VR 290, considered / Palmer v Magistrates Court of Queensland [2024] QCA 8, cited / Stanley v DPP (NSW) (2023) 407 ALR 222; [2023] HCA 3, considered

COUNSEL: The appellant appeared on his own behalf / K L Pitman for the first respondent / G M Elmore for the second respondent

SOLICITORS: The appellant appeared on his own behalf / G R Cooper, Crown Solicitor for the first respondent / Queensland Police Service Legal Unit for the second respondent

BOND JA: I have had the advantage of reading in draft the judgment of Dalton JA. I agree with the analysis of Dalton JA on the key issues for resolution in relation to the appeal. Her Honour’s reasons permit me to explain the extent of my agreement in a summary way.
On the distinction between final and interlocutory orders, I too reach the requisite degree of persuasion¹ that the construction of r 765 by Chesterman J in De Innocentis v Brisbane City Council² and followed by McMurdo P in Kambarbakis v G & L Scaffold Contracting P/L³ is wrong. I too prefer the opposite view expressed by Holmes JA in Kambarbakis. I agree with Dalton JA’s analysis of authority and her Honour’s conclusion that the language of r 765 does not justify the conclusion that previous High Court authority on the distinction was no longer applicable. It follows that I agree with Dalton JA that the decision of the primary judge in the present appeal was not a final decision, and the appeal before this Court was an appeal in the strict sense.
The proceeding which the appellant sought leave to issue in the Supreme Court was a proceeding which sought to challenge the decision of a District Court judge on an appeal from the Magistrates’ Court pursuant to the Domestic and Family Violence Protection Act 2012 (Qld). That Act does not confer any right of appeal to the Supreme Court from the decision of the District Court judge on such an appeal. To the contrary, s 169(2) of the Act provides that the appeal decision is final and conclusive.
However, it does not thereby follow that the appeal decision is immune from any form of challenge.
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.⁴ 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.

History of Litigation

The history of the litigation is somewhat complicated. DU on the one hand, and the police on behalf of his one-time girlfriend, TG, each sought protection orders under the Domestic and Family Violence Protection Act 2012 (Qld) (Domestic Violence Act). Both applications came on for final hearing in the Southport Magistrates Court on 2 March 2022. The Magistrate made a protection order in favour of TG and dismissed DU’s application for a protection order. DU then appealed to the District Court pursuant to s 164 of the Domestic Violence Act against both the Magistrate’s making a protection order against him, and the Magistrate’s failing to make a protection order against TG. That appeal came on before the first respondent. On 16 September 2022, he dismissed the appeal in relation to the order made against DU. However, he allowed the appeal in relation to the Magistrate’s failure to make an order against TG. The first respondent found that the Magistrate gave no reasons for his decision not to make a protection order in favour of DU. He remitted DU’s application to the Magistrates Court to be determined by a different Magistrate. At the time this appeal was heard, there had been a hearing in that remitted matter, but no decision made on it.
In October 2022 the appellant filed an application in this Court seeking leave to appeal from the decision of the first respondent. That came before Mullins P on 15 November 2022. She ordered that the application for leave to appeal be struck out.⁷ Mullins P followed several cases in this Court dating to 2014, to the effect that there is no right to appeal from a District Court decision on appeal from a Magistrate under the Domestic Violence Act. This is because the Domestic Violence Act provides that the appeal decision is “final and conclusive” – s 169(2). On 3 February 2023 the appellant filed an application in the High Court for special leave to appeal the decision of Mullins P. That application was dismissed in May 2023.⁸
After that defeat, the appellant tried a different approach. On 12 June 2023, he filed an application for judicial review of the first respondent’s decision.⁹ A Supreme Court Registrar referred the judicial review application to a Judge rather than issuing it. This action was taken pursuant to UCPR r 15 which provides:

“(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.

The court may direct the registrar—

to issue the originating process; or

to refuse to issue the originating process without leave of the court.”

The appellant then made an application pursuant to r 15(2) to compel the Registrar to issue his application seeking judicial review. That application came on before Martin SJA on 11 July 2023. On 23 August 2023 Martin SJA refused leave and said that he would hear the parties as to costs.

Summary of My Reasons

In my view, this appeal should be allowed. An order should be made directing the Registrar to issue the application filed by the appellant on 12 June 2023. A direction should be made that that application is stayed until the appellant amends it to seek only an order in the nature of certiorari on the ground that the first respondent misapprehended his function in hearing the appeal made by DU in relation to the police protection order made against him, or a declaration based on that ground. I give a brief summary of my reasons before descending into the detail.
In my view, this Court is hearing an appeal in the strict sense (stricto sensu) in this matter. While it has a discretion to hear the appeal by way of rehearing, it should not do so. The only basis to do so would be to allow the appellant to introduce fresh evidence which would not assist the appellant’s case on this appeal.
In my view, the appellant has not demonstrated that any arguments he ran before the primary judge should have succeeded, even allowing for the low level of viability necessary to be demonstrated on a r 15 application. However, on this appeal the appellant raised a point he had not raised below. It was a point of law and was apparent on the material before the primary judge: the first respondent’s reasons for judgment show that the first respondent likely misapprehended the nature of his task on appeal.
If the first respondent did mistake his function on appeal, that would amount to jurisdictional error on his part; his order dismissing the appeal against the police protection order against the appellant, would be of no effect. That is a viable basis for a suit for a declaration, and perhaps for certiorari, so as to justify the issue of process under r 15. The fact that the likely error of the first respondent was of such consequence, and solely an error of law, means that this Court should allow the appeal even though the error was not raised below.
I now give detailed reasons for my views.

Nature of this Appeal

There is a preliminary issue as to the nature of the appeal before this Court. Rule 765 of the UCPR provides:

“765 Nature of appeal and application for new trial

An appeal to the Court of Appeal under this chapter is an appeal by way of rehearing.

However, an appeal from a decision, other than a final decision in a proceeding, … is brought by way of an appeal.

…

Despite subrules (2) and (3) but subject to the Act authorising the appeal, the Court of Appeal may hear an appeal from a decision mentioned in subrule (2) or an application for a new trial by way of rehearing if the Court of Appeal is satisfied it is in the interests of justice to proceed by way of rehearing.”

The question arises whether or not the decision below was a decision “other than a final decision in a proceeding”. In my view, it was an interlocutory decision.

Distinction between Final and Interlocutory Orders

Whether a decision is characterised as final or interlocutory is not a new question. Since the 1870s the English Courts have applied an established test.¹⁰ A very clear statement of the rule was made by Alverstone CJ in Bozson v Altrincham Urban District Council:

“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion an interlocutory order.”¹¹

There are (at least) three important High Court decisions which apply this test. In Hall v Nominal Defendant¹² Taylor J said of the test established in the earlier English cases, “Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptionable”.
In Licul v Corney¹³ Gibbs J followed Hall saying that the test I have already referred to, “… should, I think, be regarded as established in Australia” – p 225. He stated the test this way: “Does the judgment or order, as made, finally dispose of the rights of the parties?” Licul was an extension of time case, where an extension had been refused by the Court below. Gibbs J decided that the order under appeal:

“does not have the effect of finally disposing of the rights of the parties. It leaves open – at least in theory – to the applicants to make a further application … for an extension of time … and if that extension is granted, … to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be. If it were right to test the matter by looking at the application rather than at the order the same result would follow even more clearly, since the application was not of such a character that whatever order was made on it would finally have disposed of the matters in dispute …” – p 225.

The last of the three cases is Carr v Finance Corporation of Australia Limited (No 1). That case concerned the characterisation of a judgment by default. Gibbs CJ said:

“… The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney (1976) 50 ALJR 439, at p 444. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant (1966) 117 CLR 423, at p 440. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.

In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present.”¹⁴ (my underlining).

Orders on Originating Applications

There is a subset of the cases about characterising a decision as final or interlocutory which concern a decision made on an Originating Application, or its equivalent. Application of the standard test to such orders presents some difficulty because the order on an Originating Application does determine such of the parties’ rights as are in issue on the Originating Application, in circumstances where there is no other proceeding. The present case falls into this category. In dealing with this subset of cases, the Courts have not looked at whether the decision on the Originating Application determines the proceeding begun by it, but to whether the decision determines the underlying dispute between the parties.
Hall v Nominal Defendant was a case of this type. Under consideration in Hall was a provision of the Traffic Act 1925 (Tas) which created a statutory cause of action against the Nominal Defendant. The cause of action had to be brought within a specified time, that was an essential condition of the statutory right. However, the Act allowed an application to be made for an extension of the time. Unless the time was extended, there was no cause of action and could be no proceeding. In the lower courts an order extending time was refused. On appeal to the High Court, the question arose whether or not this order was final or interlocutory. Windeyer J recognised the established test to resolve that question (discussed above), and then said:

“But I find it hard to relate the test of finality or otherwise in the determination of a dispute between parties to [the question then before the court], because in such a case there is no existing dispute between parties and no existing action, and unless the prescribed times be complied with or extended there is no cause of action it seems to me. … The question is, in effect, whether he should be permitted to bring an action. A refusal of his application means that he cannot do so. I am prepared to assume that in practical effect, if not in strict law, a refusal would preclude him from making another application for an extension of time. But does this mean that such a refusal would be a final order? On the whole I think not. The question is a troublesome one; and I have found no analogy on which to base my decision. The position when there is an existing dispute between defined parties does not, I think, provide an analogy. There, as I have said, the cases shew that the determining factor is the effect of the order in establishing finally or otherwise the rights of the disputant parties – does it put an end to an existing dispute or existing action? But in a case such as this the character of the proceedings in which the order is made seems to me of more significance than is the result for the applicant. I am unable to accept the view that if an extension of time as sought were granted such an order would be a final order. It seems to me it would be interlocutory; and I think the position is the same if the extension be refused or if a lesser time were allowed than was sought.” – pp 444‑445.

This reasoning has been applied to subsequent cases within this subset.
Hall, Licul and Carr were all cited by McPherson J in Ex Parte Britt, along with Port of Melbourne Authority v Anshun Proprietary Ltd (No 1).¹⁵ Britt concerned a question of whether hearsay evidence was admissible; it was if the application was interlocutory.
McPherson J particularly referred to the dicta of Windeyer J (above), in concluding that whether or not an order or application is to be classed as final or interlocutory must be, “determined independently of the outcome of the application. Any other conclusion would be impracticable. It would be impossible, until the result of the application was known to say whether the application was final or interlocutory, and therefore impossible to decide whether or not hearsay evidence was admissible for the purpose of that determination.” – p 224 (my underlining). McPherson J said:

“For my part I consider that the test laid down by the decisions of the High Court of Australia to which I have referred should also be applied to determine what is final or interlocutory for the purpose of O 41, r 3. That test is, as I have said, whether the decision on the application will finally dispose of the rights of the parties, not merely as to the subject-matter of the particular application in question but also as to the ultimate dispute between the parties, irrespective of whether it is already the subject of litigation, and independently of whether the outcome of the application may, in a practical sense, spell an end to all prospect of initiating such litigation.” – p 226.

In Hardel Pty Ltd v Burrell & Family Pty Ltd¹⁶ the Full Court of South Australia was concerned with a decision setting aside a statutory demand, a decision within the subset of cases now under consideration. Kourakis J, writing for the Full Court of South Australia, referred to the remarks of Windeyer J, to which I have referred above. He said of them:

“The discussion in those passages of the interrelationship between the underlying dispute or matter involving the parties and the action which is instituted to resolve it is of considerable importance. An action is brought so that the controversy between the parties may be adjudicated. A final order determines the underlying matter, or some part of it, and for that reason will generally dispose of the action or an element of it. An interlocutory order, on the other hand, determines an aspect of the forensic procedure in accordance with which the matter will be adjudicated. For that reason it will generally direct the course of further proceedings rather than determine any part of the subject matter of the dispute. It must be remembered that the action itself is no more than the procedure by which the court’s jurisdiction is invoked; it must not be conflated with the subject matter of the controversy. Consequently, an order bringing an action to an end by dismissal of the action or default judgment may still be interlocutory. …” – [24].

Kourakis J referred to a decision of Hayne J in Mibor Investments Pty Ltd v Commonwealth Bank of Australia.¹⁷ Hayne J was of the view that an application to set aside a statutory demand was interlocutory, having regard to the received tests:

“In my view this application is an interlocutory proceeding. Unlike the question in Cowie’s Case (which was whether a statutory authority had immunity from suit in a particular case because of a failure to give notice under the Statute of Limitations) the present proceeding determines only whether a demand may stand or not. If the demand stands, the consequences are serious but there is no final determination of any right.

All that follows from the demand not being set aside is that the company will have a further perhaps short period within which it must meet the demand or face a conclusion that it is to be presumed insolvent (unless it proves the contrary). No order can be made under s 459G which finally determines the rights of parties.”

Kourakis J noted that in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd,¹⁸ a bench of five judges in Victoria followed the reasoning in Mibor saying, “The question whether an order is final or interlocutory depends on its legal rather than its practical effect. As Hayne J said in Mibor, if the demand stands, the consequences are serious but there is no final determination of any right.”¹⁹ Kourakis J followed these cases in determining that an order setting aside a statutory demand was interlocutory. He said, “The practical effect of the dismissal of an application does not in any way alter my conclusion. First, it is clear on the authority of Licul that it is the legal effect that must be considered. Secondly, even if one were to consider the practical effect of the dismissal, that effect is completely procedural and adjectival in nature for the reasons that I have given.” – [43].

A Different Test for r 765(2)?

In the matter of De Innocentis v Brisbane City Council²⁰ the Full Court considered r 765(2) and the meaning of the words “a final decision in a proceeding”. In that case, a decision had been made in the trial division of the Supreme Court refusing to join a party to an extant proceeding because the joinder application was outside the time limited by the Limitations Act (r 69(1)(b)(i) of the UCPR). The same question arose as arises in this case, whether the appeal was an appeal stricto sensu, or by way of rehearing. Chesterman J said:

“[32] Rule 765 provides that:

‘(1) An appeal to the Court of Appeal under this chapter is an appeal by way of rehearing.

However, an appeal from a decision, other than a final decision in a proceeding, or about the amount of damages or compensation awarded by a court is brought by way of an appeal.

...’

In a case such as the present one, whether the discretion is to be exercised in accordance with rule 69 or the former O 3 r 10 is not likely to be important. I would, however, think that the appeal is from a final decision in a proceeding so that it is a rehearing.

[33] There was some debate as to whether the judgment appealed from, which dismissed the appellant's claim against the Council leaving his action against the second defendant to proceed, should be categorised as final or interlocutory. It was said to be interlocutory in form but final in effect. The distinction has been productive of confusion and no entirely satisfactory test has evolved to determine into which category a judgment should be placed.

[34] The wording of r 765 must have been chosen deliberately to avoid the necessity of resolving such fine points. It uses the term ‘final decision’ and not ‘final judgment’. The draftsman cannot have been ignorant of the wealth of learning that has been built up with respect to what are ‘final judgments’. The new rule has been so expressed as to make that knowledge obsolete. One looks only to see whether an appeal is brought from something which answers the description ‘final decision in a proceeding’. ‘Decision’ has a wider connotation than ‘judgment’. There is no doubt the chamber judge made a decision. He struck out the appellant’s claim against the Council. This is final in the sense that it brought that claim to an end. The decision precludes further controversy on all questions involved in that claim. No further decision with respect to the claim is necessary or possible. The decision is therefore final. …”

Against the history just outlined, the remarks at [34] of the above quotation are extraordinary. So far as I can ascertain, they have only been referred to twice.
About 10 months after the decision in De Innocentis, in Kitto v Medalion Homes Ltd (in liq),²¹ a question about the interpretation of r 766 arose. Davies JA, with whom Thomas JA and Mullins J agreed, said, “Whatever effect De Innocentis’ decision has had, it does not seem to me to affect the application of the decisions to which I have just referred of the High Court to the question of what is a final judgment which is the term used in rule 766(2)”. The decisions to which Davies JA had referred were Hall and Carr.
In Kambarbakis v G & L Scaffold Contracting P/L²² McMurdo P, dissented. One of the points on which she differed from the other members of the Court was that she thought that the judgment in De Innocentis should be followed on the point now under consideration*.* She said:

“Rule 744 UCPR defines ‘decision’ as used in r 765 as ‘an order, judgment, verdict or an assessment of damages’. In De Innocentis v Brisbane City Council, Chesterman J, with whom Pincus JA and Thomas JA agreed, noted that the use in r 765 of the term ‘final decision’ rather than ‘final judgment’ is significant; ‘final decision’ is a broader concept than that encompassed by ‘final judgment’. Although the primary judge's decision was interlocutory in the sense discussed by Holmes JA, its practical effect was to end Mr Kambarbakis’s chance of success in any claim he might commence against the respondent. The respondent’s limitation defence would necessarily defeat any claim Mr Kambarbakis might bring. Holmes JA has persuasively demonstrated the argument to the contrary, but I consider the better interpretation of r 765(2) is that ‘a final decision in a proceeding’ includes a decision by a Supreme Court judge refusing an application to extend a limitation period: cf De Innocentis v Brisbane City Council. …” – [4].

Holmes JA took the opposite view, in accordance with established authority. She said:

“Although, as was pointed out by Chesterman J and accepted by the other members of this Court in De Innocentis v Brisbane City Council, the expression ‘final decision’ is broader than ‘final judgment’ with which earlier case law was concerned, I would, nonetheless, regard a refusal of an extension of the limitation period as not being a ‘final decision in the proceedings’. As was observed in Meddings v Council of the City of Gold Coast, there is nothing to prevent an unsuccessful applicant from continuing with his or her action, although he or she will be met with an unanswerable defence, or from bringing another such application in the proceedings, unlikely though it would be to succeed. The appeal is, therefore, to be distinguished from that available under r 765(1); it is in the nature of an appeal stricto sensu.” – [31].

Muir JA did not express an opinion on this issue, as, in his opinion, whether the appeal was by way of rehearing, or an appeal in the strict sense, the result was the same.
With all due respect, the part of the decision in De Innocentis contained at [34] of the above quotation is plainly wrong and should not be followed. That the word “decision” is used in r 765(2), rather than “judgment” or “order” can have no logical bearing upon whether the traditional test applies under that rule. So much was said by Holmes JA in Kambarbakis. A review of the language in the cases which I have outlined above shows the word “order” or “judgment” is used interchangeably; the rule is the same whichever is being spoken about. As has been remarked by Gibbs CJ and by McPherson J (underlined passages at [27] and [32] above), if the traditional test is abandoned, it does not lead to a clearer or more logically satisfying result. To the contrary, it leads to undesirable unpredictability, for the answer to the question in each case rests not on principle, but upon the subjective assessment of the particular judicial officer as to whether or not an order is, in its practical effect, final.

The Decision of Martin SJA is Interlocutory

Applying the traditional test, the decision of Martin SJA refusing to direct the Registrar to issue the proceeding which DU had filed was interlocutory in its nature. Unless overturned on appeal, the decision finally determined that DU could not proceed with his proposed application to judicially review the decision of the first respondent. However, it did not finally determine whether or not there was a possible basis for such a judicial review. Nor did it determine the underlying issue between the parties: whether a protection order under the Domestic Violence Act ought to have been made against DU. After considering the reasons for judgment of Martin SJA, it would have been perfectly possible for DU to have filed another application asking for a r 15 direction; he may have had different grounds than those dealt with by Martin SJA. Also, DU could have filed another proceeding for judicial review of the first respondent’s decision by way of Originating Application. While that too may have been subject to the r 15 process, if the proceeding which DU wished the Registrar to issue was different in a material respect from the one dealt with by Martin SJA, the outcome of that process would not necessarily be the same.
In fact, in a neat illustration of this point, by the time the appellant argued the case before this Court, he had thought of an additional basis for his claim to review the first respondent’s judgment. He raised it orally on appeal for the first time, which has given rise to some procedural delays. However, as it happens, I think the new point is a good one, see below. Rather than raise the point on this appeal, the appellant might have proceeded in either of the ways suggested at [43], essentially bringing a new application in the trial division.

Appeal in the Strict Sense

Because the decision of Martin SJA was interlocutory, r 765(2) means that the appeal before this Court is an appeal stricto sensu, or an appeal in the strict sense, unless this Court decides that the justice of the case requires that there should be an appeal by way of rehearing – r 765(4). In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd Mason J explained that an appeal in the strict sense is one which considers whether the judgment below was right when given, on the material which the lower court had before it.²³ In contrast, an appeal by way of rehearing involves the Court having power to grant leave to a party to adduce new and fresh evidence. Furthermore, an appeal on rehearing involves the rights of the parties being determined by reference to the law as it exists at the time of the appeal, rather than at the time of the first instance hearing.²⁴ Both an appeal in the strict sense and an appeal by way of rehearing are dependent on the identification of error in the decision below.²⁵ In both types of appeal the appellate court reconsiders the conclusions of fact reached by the Court below.²⁶
The only reason this Court might consider dealing with this appeal by way of rehearing is to allow the appellant’s application to introduce fresh evidence on the appeal.

Application to Adduce Further Evidence on the Appeal

On the original hearing before the Magistrate in 2022, the appellant was refused permission to cross-examine TG.²⁷ In August 2023, on the remitted hearing, another Magistrate allowed the appellant to cross-examine TG. The appellant sought leave to put a transcript of that cross-examination before this Court. He correctly says that it could not have been put before the primary court, for at that stage it did not exist, notwithstanding he had sought to cross-examine TG at the first Magistrate’s hearing. The real question as to whether or not it should be admitted as fresh evidence on this appeal is whether or not it would probably have an important influence on the result of this appeal.²⁸ In my view it would not. It could only be relevant to matters which could not arguably support judicial review of the first respondent’s decision, namely the matters dealt with at [55] and [61] below. For this reason I would not deal with this appeal as an appeal by way of rehearing. I would dismiss the appellant’s application to adduce fresh evidence on this appeal.
I proceed to examine the appellant’s grounds of appeal against the decision of Martin SJA.

Nature of Application before Martin SJA

Before Martin SJA the appellant sought leave to commence a proceeding in the nature of certiorari, s 41 of the Judicial Review Act 1991 (Qld). The appellant accepted that by reason of s 169(2) of the Domestic Violence Act, he had no appeal from the decision of the first respondent, but relied upon the principles in Hockey v Yelland to the effect that, even where a statute provides that a decision is to be final and conclusive, certiorari for jurisdictional error can still issue.²⁹ The second respondent did not challenge that proposition, and it is plainly correct.
In relation to the question of when leave should be granted under r 15 of the UCPR, the primary judge accepted the appellant’s submissions that the principles were as stated by Brown J in McEwan v Merrin (Magistrate).³⁰ Brown J said:

“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.

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:

‘… 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.’” (my underlining).

The primary judge recognised that as the proposed proceeding here was one to be made by an application for review there were no pleadings, but there was “a need to articulate how the grounds advanced can support the making of the order or orders sought” – [9].

Proposed Grounds of Review before Martin SJA

The application for judicial review which the appellant sought to have the Registry issue was as follows:

“1. The applicant seeks prerogative orders in the form of certiorari, mandamus and declaration by part 5, sections 41–47 of the Judicial Review Act 1991.

A declaration that the appeal titled ‘DU v TG and Another [2022] QDC 247’ was conducted unlawfully.

An order of certiorari to quash ‘DU v TG and Another [2022] QDC 247’ on the basis of–

a. Jurisdictional error

b. Bad faith or fraud

c. Error of law on the face of the record

d. Ancillary to a declaration

An order of mandamus, compelling the First Respondent to allow the appeal, then dismissing the protection order application. Or orders of similar effect to dismiss the 2nd Respondents’ protection order application.

The circumstances of the appeal violated the applicant’s human right to a fair hearing, as per the Human Rights Act 2019 section 31(1).

The grounds of the application are set out in the accompanying affidavit, sworn by the Applicant on 7 June 2023.”

The primary judge noted that in the appellant’s “accompanying affidavit” there was material relevant only to the certiorari ground and an additional ground not listed in the proposed application. Further, that “the accompanying affidavit” was really in the nature of a submission.
In my view, there is no reasonable argument that Martin SJA erred in rejecting grounds put forward by the appellant as supporting the viability of the proceeding he wished the Registrar to issue.³¹

Bad Faith

Most of the grounds asserting jurisdictional error on the part of the District Court Judge were based on allegations of bad faith. What the primary judge referred to as an additional ground also falls into this category.³² At best for the appellant, these grounds are based on his misunderstanding of legal process. There is nothing raised in them which could found a sensible attack on the District Court judgment, much less show a jurisdictional error. The primary judge was right to consider that this part of the proposed judicial review application was vexatious.

Error of Law

The appellant argued that the first respondent erred in thinking that he had jurisdiction to remit the application against TG for a protection order for rehearing by itself, ie., without a simultaneous rehearing of the police protection application against DU. The appellant argued that a conclusion that his application for a protection order was to be remitted for further hearing necessitated that the police application also had to be reheard.³³ The appellant’s construction of the relevant provisions of the Domestic Violence Act are not fairly arguable. Martin SJA’s decision as to this matter was correct.
The legislative intent relevant to these provisions of the Act is no doubt associated with s 4 of the Act, entitled “Principles for administering Act”. Section 4(2)(e) provides:

“(2) Subject to subsection (1), this Act is also to be administered under the following principles—

…

in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection—

the person who is most in need of protection in the relationship should be identified; and

only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other;

…”

Against that background, s 41A(1) provides that if an application for a protection order is made, and then the respondent makes a cross-application, the series of provisions at ss 41B – 41E applies. These sections compel the parties to disclose cross-applications to the other parties involved, and to the Court. Section 41C, which the appellant relied upon, provides:

“41C Hearing of applications—cross applications before same court

This section applies if—

either—

the original application and cross application are before the same court; or

the variation application and cross application are before the same court; and

the court is aware of both applications.

The court must—

hear the applications together; and

in hearing the applications, consider—

the principle mentioned in section 4(2)(e); and

whether it is necessary to make arrangements for the safety, protection or wellbeing of the person most in need of protection in the relevant relationship that exists between the persons who are the aggrieveds and respondents to the applications.

…”

There are further provisions at s 41D – 41G as to applications and cross-applications. It is clear that all these provisions relate to the hearing of these applications and cross‑applications in the Magistrates Court. While it can be seen that there is a general legislative intent that these first instance hearings deal with applications and cross-applications together if possible, I do note that in some instances the legislation contemplates that, even at first instance in the Magistrates Court, applications and cross-applications will be heard before different courts.³⁴ Section 41A(2) and (3) apply to extend the general (but not invariable) principle that applications and cross‑applications are heard together to circumstances where an application to vary one or other of the protection orders is made.
The appellant argued that s 41C of the Domestic Violence Act applies to require the District Court on appeal to rehear both the application together with any cross‑application below. There is no provision which compels hearing of appeals against applications and cross‑applications by the same Court, much less any provision that the District Court hearing an appeal from an order made on an application, together with an order made on a cross-application, must remit both applications if it determines to remit one. Part 5 Div 5 of the Domestic Violence Act deals with appeals. There are no provisions comparable to those at s 41A – 41G of the Domestic Violence Act in this Division. That is, there are no provisions requiring the appellate court to hear appeals from applications and cross-applications together. Section 169(1)(d) allows the District Court to remit a matter to the Magistrates Court for rehearing, but there are no provisions as to related cross-applications when such a remittal is made.

Additional Ground

Before Martin SJA a further ground was raised at paragraphs 26 and 27 of the appellant’s affidavit, sworn 7 June 2023. It is a complaint that the Magistrate (not the first respondent) did not pay enough attention to a particular piece of evidence before him. Even if the complaint is regarded as extending to the first respondent, it could not be the basis for a grant of relief in the nature of certiorari. Martin SJA’s decision as to this matter was correct.

Original Grounds of Appeal in this Court

In this Court the appellant argued that Martin SJA erred in construing s 41C of the Domestic Violence Act (ground 1). For the reasons explained above, this ground must fail.
Grounds 2 and 4 before this Court concerned the bad faith grounds which the primary judge rejected. A ground which concerned s 151 of the Domestic Violence Act was re-agitated.³⁵ While the appellant is obviously aggravated by the matters raised, they do not amount in law to legally sensible grounds of review of the decision of the first respondent, or provide legally sensible bases to appeal from the decision of Martin SJA.
More generally, the appellant asserted that Martin SJA erred in finding that bad faith, if established, was not a basis for an order in the nature of certiorari. I cannot see that Martin SJA made such a statement. What Martin SJA found was that the facts and circumstances relied upon by the appellant did not raise any fairly arguable point of bad faith. There is nothing in these grounds.
Ground 3 before this Court asserted that Martin SJA “erred in his construction of certiorari”. I cannot see that Martin SJA misunderstood principles of law relating to certiorari, or his task on the application before him. There is nothing in this ground.
Ground 5 of the appeal related to the additional ground dealt with by Martin SJA below. As explained above, this complaint was not an arguable basis to review the decision of the first respondent.

Additional Argument Raised on Appeal

In oral argument before this Court the appellant raised an argument which he had not raised in written or oral submissions before Martin SJA.³⁶ The point was that in hearing the appellant’s appeal from the police protection order made by the Magistrate, the first respondent treated the Magistrate’s findings of fact, and decisions about the evidence as if the Magistrate were a jury, whereas the first respondent ought to have conducted an appeal by way of rehearing where he reviewed all the evidence before the Magistrate and came to his own conclusions.

Procedural Matters

The new ground advanced by the appellant might be a basis for seeking an order in the nature of certiorari – s 41(2) Judicial Review Act, although it will raise the vexed question as to whether or not (in Queensland) reasons for decision form part of the “record”.³⁷ That this question is unclear would not be a sufficient basis to refuse to issue proceedings pursuant to r 15. In any event, the Supreme Court has a supervisory jurisdiction over courts of inferior jurisdiction.³⁸ This means that it is open to the appellant to seek a declaration from this Court that the first respondent’s orders were made without jurisdiction, in addition to, or as an alternative to, an order in the nature of certiorari.
The new ground involves only a question of law and it was apparent on the material which was before Martin SJA. It was not a point which the appellant agitated before Martin SJA, but it was like those points he did agitate, in that it depended upon an assertion of jurisdictional error, and in that it would be the basis for a proceeding for an order in the nature of certiorari, or a declaration. As well as that, the point is a fundamental one, going to the validity of the judgment of the first respondent and one which is of some general application and importance. For all these reasons, I think it is right that this Court consider the point on appeal even though it was not raised below.
I was concerned that at the oral hearing, the second respondent did not have sufficient notice that the Court would treat the new point advanced by the appellant in this way. Accordingly, after the decision in this matter was reserved, with the agreement of Bond JA, I had the Registry contact the parties to give the second respondent a chance to make any additional submissions it wished to make as to: (i) whether the Court should deal with the new point even though it was not raised below; (ii) its cross-application before Martin SJA, and (iii) the delay point it raised before Martin SJA. The Court received written submissions as to these matters from the second respondent, and a response from the appellant.
The second respondent properly conceded that the point raised by the appellant was one which the Court should deal with, even though it was raised for the first time on appeal.

Misconception of Statutory Function by First Respondent

The appeal the first respondent conducted was an appeal pursuant to s 168 of the Domestic Violence Act which provides:

“168 Hearing procedures

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

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

In his reasons for decision the first respondent said:

“A right of appeal exists pursuant to s 164 of the [Domestic Violence] Act for a person aggrieved by the making of a domestic violence order or the refusal to make one. As is clear from s 168 of the [Domestic Violence] Act the appeal is a rehearing to be decided on the evidence and proceedings before the court that made the decision although there is a residual power to order the appeal be heard afresh in whole or part.” – [11].

I am not sure that the provision at s 168 is clear. When, for hundreds of years, there have been defined concepts of an appeal in the strict sense; an appeal by way of rehearing, and an appeal by hearing de novo, I cannot understand why the Legislature has used the language in s 168. The language at 168(1) equally describes an appeal in the strict sense, and an appeal by way of rehearing. The availability of applications to vary protection orders in the Magistrates Courts if facts change is one reason which might support an interpretation of s 168(1) as describing an appeal in the strict sense. The language at s 168(2) is consistent with a hearing de novo in its use of the word “afresh”, but is inconsistent with the idea of a hearing de novo because there is no right to the “fresh” hearing, it is available only if an order is made.³⁹ Perhaps if an order is made to hear part of the appeal “afresh”, that decision converts what would otherwise be an appeal in the strict sense under s 168(1) to an appeal by way of rehearing. This is another reason why s 168(1) might be interpreted as an appeal in the strict sense.
The first respondent did allow some evidence which was not before the Magistrate, although he said he did not regard it as fresh evidence – [36]. He also said he allowed another affidavit as fresh evidence but did so because he interpreted s 168(1) as empowering him to conduct a rehearing, not because he was embarking on a hearing “afresh” pursuant to s 168(2) – [36]-[37].
This appeal is not a good vehicle to determine whether s 168(1) describes an appeal in the strict sense, or an appeal by way of rehearing: the appellant could not be expected to address such matters in any depth, and whichever of the three possible types of appeal the first respondent was conducting, the strength of the appellant’s point remains the same.
As to his function, the first respondent said, “It is necessary for the appellate court to conduct a real review of the evidence recognising the advantage to the primary judge of seeing and hearing that evidence.” – [13]. That is no doubt correct. However, he then said: “The question is not whether the appellate court may have come to a different conclusion. Instead, the relevant question is whether or not the decision reached by the primary court was reasonably open on the evidence before it.” – [15]. The first of these sentences is a misstatement of the law; the second is ambiguous.
Because the first respondent made conflicting statements as to his function on the appeal, I was concerned to review the judgment carefully to see what approach was in fact taken by the first respondent (as opposed to his descriptions of his task). While there are parts of the District Court judgment where the first respondent expresses the view that he shares the Magistrate’s opinions, or regards the Magistrate’s findings as correct, it seems to me likely that, at other parts of the judgment, the first respondent adopted the erroneous approach he described at [15] of his judgment. The erroneous approach appears to have been taken in relation to the important appeal ground that the Magistrate erred in finding acts of domestic violence by the appellant. The first respondent said:

“[The Magistrate] recited the evidence relevant to finding the episodes of domestic violence that he did and for making the finding that it was necessary or desirable for an order to be made.

In my view, while I will address the grounds specifically shortly, it can immediately be said that upon my review of the evidence, it was open to his Honour to take the view of it that he did.

His Honour made the following findings which are set on pages 12 and 13 of the transcript of the decision:

…” – [31]-[33], (my underlining).

Immediately following that part of the reasons for judgment, the first respondent listed 10 findings of fact made by the Magistrate. It is a feature of the first respondent’s judgment that it does not contain any review of the substance of the evidence as to what constituted domestic violence, or any exposition of what was in contest on this issue, so as to show that the first respondent had considered the relevant issue and evidence himself, and come to the same conclusion as the Magistrate.
Further discussion of the evidence follows, and the approach outlined at [15] of the first respondent’s reasons continues. At [42] the first respondent says, “[the Magistrate] was entitled on the evidence to find …”. See also [44] and [46] in this regard. As to another part of the evidence the first respondent says, “His Honour carefully considered the appellant’s arguments as to whether or not they were letters authored by the appellant and he was entitled to reach the conclusion he did” – [58].
At [54] the first respondent says, “… as I have said the learned Magistrate was entitled to conclude that the appellant had engaged in acts of domestic violence on the basis of all of the evidence”.
At [62] of the first respondent’s judgment he said:

“As to ground 16, his Honour acknowledged the antipathy felt by the first respondent’s father towards the appellant but found him to be a credible witness. His Honour was entitled to do that. Further, not only do I consider that there was no error in this respect, I consider that his Honour was right to limit cross-examination in the way he did.”

I think all the above quotations from the first respondent’s judgment tend to show that the first respondent equated his role on appeal as checking whether or not there was evidence upon which the Magistrate could properly have made a finding, in the same way an appeal court might consider the verdict or findings of a jury, so that there would only be appellable error if there were no evidence to support the finding below. The last sentence in the final quotation from the first respondent’s judgment seems to indicate that the first respondent thought this task was a different task from considering whether or not the Magistrate was correct in his conclusions. That accords with the first sentence at [15] of the judgment, where the first respondent says, “The question is not whether the appellate court may have come to a different conclusion”.
In Fox v Percy⁴⁰ the High Court considered the nature of an appeal by rehearing.⁴¹ In that case the majority of the New South Wales Court of Appeal had reversed a factual finding of the trial judge. The New South Wales Court of Appeal heard the appeal by way of rehearing and the statute provided that on the rehearing the Court had the power to draw inferences and to make findings of fact.⁴² After referring to these statutory provisions, the High Court said:

“[22] The nature of the ‘rehearing’ provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. …

[23] The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. …

[24] … Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge’s detailed reasons.

[25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses and should make due allowance in this respect’. …” (footnotes omitted).

In written submissions on this point, the second respondent noted that [15] of the first respondent’s judgment cited Edwards v Noble⁴³ as authority for the propositions stated. The reference was a passage in the judgment of Barwick CJ which included the following, “In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding.”⁴⁴
The first observation I would make is that an appellate court can only be convinced that a finding of fact is wrong if it undertakes an analysis and evaluation of the evidence and contentions in relation to the disputed factual finding. That caution might be needed in reversing such a finding does not mean that the only task of a court on rehearing is to check whether or not there was evidence which was capable of supporting the finding below. In any event, the law in relation to the role of an appellate court has developed since Edwards v Noble. Indeed in Fox v Percy (above), McHugh J expressed the view that the dicta from Edwards v Noble was never correct. He said, “In earlier cases, Barwick CJ and Windeyer J had suggested that the findings of trial judges were entitled to special deference, even when the findings were based on inferences drawn from facts found or admitted. Warren denied that proposition.”⁴⁵ McHugh J was the only judge in Fox v Percy to mention Edwards v Noble.
The second respondent also referred to a decision of this Court in McDonald v Queensland Police Service,⁴⁶ another judgment which was referred to in the footnotes to that part of the first respondent’s judgment dealing with his role on appeal. McDonald dealt with another case on appeal from the District Court at Southport. One of the points on appeal was very like the one raised here; it was contended that the District Court Judge had not conducted an appeal by way of rehearing. The Court of Appeal said in McDonald:

“[47] However, in this case, the District Court judge did conduct the appeal appropriately, in accordance with law, by way of a rehearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing. It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.

[48] It is clear, particularly from [14]-[18] of the decision below, that the District Court judge reviewed the evidence that was before the Magistrate, and formed his own view of it, leading to the conclusion that, in the challenged respects, he could see no basis to overturn the Magistrate’s factual findings – that is, could see no error in those factual findings, which would warrant allowing the appeal.” (my underlining).

The respondent referred to the District Court decision from which the appeal in McDonald was brought to say that the language used by the District Court Judge in that case was similar to that used by the first respondent.⁴⁷ The District Court Judge in McDonald said at one point in his reasons, “it was open to the learned Magistrate to accept” a particular witness’s evidence. That expression does rather indicate that the District Court Judge in McDonald had not formed a view on the evidence himself, and no doubt it was a reason for the point taken on appeal in that case. However, in McDonald the language referenced is at the end of a series of four paragraphs where it is made clear that the District Court Judge did evaluate the conflicting evidence for himself by reference to the contested points – [14]-[18].
Here, that sort of evaluation is not apparent in the reasons of the first respondent. Further, as set out above, from the statements made by the first respondent, and from the substance of his reasons, it seems likely that he regarded the Magistrate like a jury, in the sense that he simply looked to see whether or not the findings made by the Magistrate were open on the evidence. It seems likely that the first respondent did not conduct a real review and come to conclusions of his own. There is certainly an arguable case that the first respondent mistook his task on appeal sufficient to justify the commencement of proceedings under r 15.

Jurisdictional Error

In my view, whether the first respondent was conducting an appeal by way of rehearing, or an appeal in the strict sense, a failure to conduct a real review of the Magistrate’s hearing and reasons, and to form his own view of the parts of the evidence which were contentious on appeal, would amount to jurisdictional error. The right to appeal is a creature of statute. By s 169(1) of the Domestic Violence Act, the first respondent had a statutory power to make orders which altered the legal rights of the parties to an appeal, but only after a hearing in accordance with s 168 of the Domestic Violence Act. The error which the appellant wishes to assert is an error within the traditional definition of jurisdictional error, to quote Jagot J in Stanley v DPP (NSW):⁴⁸

“… Accordingly, an ‘inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’. The second kind of jurisdictional error (misapprehending or disregarding the nature or limits of functions or powers) was described as including: (a) disregarding or considering some matter if the statute conferring jurisdiction requires that particular matter to ‘be taken into account or ignored as a pre‑condition of the existence of any authority to make an order’; and/or (b) misconstruing the statute conferring jurisdiction so as to misconceive the nature of the function being performed.” (footnotes omitted).

Conducting an appeal of the type prescribed by statute was a condition of the authority of the first respondent to make an order.⁴⁹
As Gageler J was at pains to emphasise at the beginning of his judgment in Stanley v DPP, the consequence of an inferior court falling into jurisdictional error is that the order it makes lacks legal authority. In LPDT v Minister for Immigration, the High Court described a decision affected by jurisdictional error as a decision “in fact” but “in law … no decision at all”, and “in that sense void”.⁵⁰ Gageler J in Stanley said of the Supreme Court’s supervisory jurisdiction over inferior courts, “The purported order can be set aside in the constitutionally entrenched supervisory jurisdiction of a State Supreme Court …” – [16].
In my view, the appellant has demonstrated a sufficiently viable case to warrant an order directing the Registrar to issue the application he filed on 12 June 2023. Because the appellant discovered a viable ground only after the application was filed, further directions are necessary to ensure he does not proceed with litigation which is not viable. On the hearing before Martin SJA, the second respondent raised two points which I have not yet dealt with. I turn to consider them now.

Cross-application pursuant to s 48 Judicial Review Act

Before Martin SJA the second respondent filed a cross-application pursuant to s 48 of the Judicial Review Act, asking that any proceeding issued pursuant to r 15 be permanently stayed. Martin SJA did not deal with that application because of the view he took of the merits of the appellant’s r 15 application – [41].
In my view, that application was prematurely made. It could only have a purpose if the r 15 application was granted. Similarly, I cannot see that it is something this Court ought to deal with on this appeal. If the appellant chooses to amend his application after it is issued by the Registry in accordance with the direction I propose, the second respondent can consider whether or not to make another application asking that the proceeding issued be permanently stayed. The Commissioner may, of course, take a different view as to the merits of doing so, having regard to the fact that the appellant has now articulated what seems to be an intelligible basis for relief.

Delay

Issues of delay were raised before Martin SJA. He noted that the Judicial Review Act required an application in the nature of certiorari to be made within three months of the judgment complained about – s 46. Here the appellant sought to file his judicial review application about nine months after the judgment complained about. The appellant did offer explanations for the delay before Martin SJA. He had received advice from a legal organisation to say that the decision of the first respondent was not subject to judicial review and, in making submissions to the Court of Appeal on the strike out application, the second respondent caused him to believe that judicial review was not available.
Martin SJA noted that pursuant to s 46 of the Judicial Review Act the Court had a power to extend time within which to apply. Conscious that he was only hearing a r 15 application, not an application for an extension of time to institute a judicial review application, Martin SJA did not make any determination about delay. He put his decision on the basis of lack of arguable merit in the proposed judicial review application (canvassed above).
The facts which were before the primary judge showed that very promptly after the Magistrate’s decision of 2 March 2022, DU appealed to the District Court. Further, that within a month of the District Court decision, DU had made his (misguided) appeal to the Court of Appeal, and that lastly, DU had then been prompt about instituting an application for special leave in the High Court. It must have been plain to the second respondent, almost from the time of the Magistrates Court decision, that DU challenged that decision, and persistently challenged that decision, albeit in the latter stages, in a way not permitted by legislation. It was not a case where during a period of delay DU simply did nothing. The second respondent put in no evidence of prejudice caused by delay.
In these circumstances, I do not think that delay since the first respondent’s decision is a reason to refrain from ordering the Registry to issue the first respondent’s judicial review application. It will be a matter for the appellant to make an application to extend time if he intends to proceed under the Judicial Review Act. Again, that issue may become uncontentious given that there is similar relief available to the appellant by way of declaration to which no time limit applies, as it is available in the inherent jurisdiction of the Court.

Costs

Martin SJA made an order that costs ought to follow the event on the appellant’s application to have the Registrar issue his proceeding. He made no orders as to costs of the second respondent’s application to stay.
The appellant challenged the costs order made against him by Martin SJA on the basis of his impecuniosity. Perhaps ironically, had a proceeding been issued under the Judicial Review Act and failed, impecuniosity might have been a relevant consideration – see s 49(2)(a) of that Act. However, no review application did issue, and the proceeding dealt with by Martin SJA was an originating application brought under r 15(2). Thus, impecuniosity was not a relevant consideration in awarding costs.⁵¹
In written submissions filed as to this aspect of his appeal, the appellant raised grounds which could not possibly have any relevance. He made pejorative statements about pro bono lawyers who had, or had not, assisted him and about the conduct of the second respondent in this litigation. He referred to matters which appeal to him as being in the public interest and indicating systemic abuse by the second respondent, but which were entirely unsupported by evidence. Lastly, he referred to a principle that a court might depart from the usual order as to costs where the successful party “by its lax conduct effectively invites litigation”.⁵² That principle could not apply here.
In my view, I cannot see that the appellant has raised anything which shows error in the exercise of discretion in ordering costs below.
Given that I would allow the application and appeal, but on a ground which was not raised below and was raised only belatedly, in oral submissions in this Court, I would order that there be no costs awarded in this appeal.

Disposition and Orders

I would:

Allow the application to appeal;

Dismiss the application to adduce fresh evidence on appeal;

Allow the appeal and set aside the orders below (except for the costs orders);

Direct the Registrar to issue the application filed by the appellant on 12 June 2023 on the condition that the resulting proceeding is stayed until the appellant amends the application so that it seeks only an order in the nature of certiorari on the ground that the first respondent misapprehended his function in hearing the appeal made in relation to the police protection order against him, or a declaration based on that ground; and

Make no order as to the costs of the appeal.

WILLIAMS J: The appellant appeals the order of Martin SJA dated 23 August 2023 pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) refusing leave to issue an originating application (Leave Refusal Decision).⁵³
The appellant also applies for leave to adduce further evidence on the appeal. At the hearing on 6 February 2024, the application to adduce further evidence was reserved, with the application to be dealt with at the same time as the appeal.
Further, the appellant appeals the order as to costs. Orders were made to facilitate the consideration of the issue of costs by the filing of an affidavit exhibiting the transcript of argument, the reasons given orally and the final order of Martin SJA (Costs Decision),⁵⁴ together with further submission in relation to costs. Subsequently to the hearing of the appeal, an affidavit and submissions on costs were provided. Accordingly, the issue in respect of costs is dealt with on the papers in accordance with the order dated 6 February 2024.
Subsequently to the hearing of the appeal the Registrar sent a letter to the parties requesting further submissions in respect of an argument raised by the appellant at the appeal hearing that had not been raised before Martin SJA (New Argument). Both the second respondent and the appellant provided further brief submissions.
At the outset of the hearing of the appeal, in accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman,⁵⁵ the first respondent sought an order that he be excused from further appearance save as to the question of costs.⁵⁶ That order was made, and the first respondent did not further participate in the hearing of the appeal.
The following issues arise for consideration:What is the nature of an appeal from a decision to refuse leave pursuant to r 15 UCPR?Should the appellant be allowed to adduce further evidence in the appeal?Are any of the appellant’s grounds of appeal made out?Should the Court deal with the New Argument and, if so, what is the appropriate relief?What is the appropriate costs order in all of the circumstances?
Before dealing with each of these issues in turn, it is necessary to briefly consider the factual chronology leading up to this appeal.

Factual chronology giving rise to the current appeal

The history of the matter is as follows:On 2 March 2022, the Southport Magistrates Court made final orders under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act) in respect of a police protection notice against the appellant and refusing the appellant’s cross-application for a protection order against TG.On 30 March 2022, the appellant filed an appeal to the District Court and the appeal was heard by the first respondent.On 16 September 2022, the first respondent gave judgment dismissing the appeal in respect of the protection order against the appellant and allowing the appeal in respect of the cross-application, with an order remitting the cross-application to the Southport Magistrates Court (First Respondent’s Decision).⁵⁷On 14 October 2022, the appellant filed an appeal in the Court of Appeal.On 15 November 2022, Mullins P struck out the appeal on the basis of lack of jurisdiction.⁵⁸On 3 February 2023, the appellant filed an application for special leave to appeal in the High Court.On 18 May 2023, the High Court dismissed the application for special leave.⁵⁹On 12 June 2023, the appellant sought to file a “prerogative order of review pursuant to sections 41 – 47 of the Act” (JR Application), being an application for review of the First Respondent’s Decision.The Registrar referred the JR Application to a judge pursuant to r 15 UCPR and on 13 June 2023 Burns J directed the Registrar to refuse to issue the JR Application without leave of the Court.On 30 June 2023, the appellant filed an originating application seeking leave to file the JR Application pursuant to r 15 UCPR.On 11 July 2023, the application for leave to issue the JR Application was heard by Martin SJA.On 23 August 2023, Martin SJA made the Leave Refusal Decision and the Costs Decision.At the time of the Leave Refusal Decision the remitter of the cross-application had not been finalised.

What is the nature of an appeal from a decision to refuse leave pursuant to r 15 UCPR?

The first issue is relevant to the exercise to be undertaken by this Court on the appeal. Accordingly, it is necessary to resolve this issue before considering the grounds of appeal.
The starting point is consideration of the nature of the Leave Refusal Decision made pursuant to r 15 of the UCPR. Rule 15 UCPR states:

“15 Registrar may refer issue of originating process to court

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.

The court may direct the registrar—

to issue the originating process; or

to refuse to issue the originating process without leave of the court.”

To obtain leave to issue the JR Application, the appellant had to establish that the originating process was not vexatious, frivolous or an abuse of process.
Brown J in McEwan v Merrin (Magistrate)⁶⁰ considered the approach to the question of whether leave should be granted under r 15 UCPR. Her Honour stated:

“[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.

[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.⁶¹ As to what is required of a pleading, Bowskill J (as she then was) in Equititrust Limited v Tucker and Others⁶² stated that:

“….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.”

Where, as here, the originating process being considered is an application for review under the JR Act, the considerations identified by Brown J need some modification. The details of the claim are to be set out in the application and the accompanying affidavit must set out the grounds of the claim.⁶³ Accordingly, the order or orders sought, and the grounds relied upon for each order, must be identified. From a practical perspective, this means that an applicant seeking leave to file an application under the JR Act must explain how the grounds identified can support the orders sought.
Next, it is necessary to consider the statutory provisions and rules which govern appeals to the Court of Appeal.
Relevantly:Section 62(1)(a) of the Supreme Court of Queensland Act 1991 (Qld) (SCQ Act) states:

“62 Appeal in proceedings in the court

Subject to this and any other Act, an appeal lies to the Court of Appeal from—

any judgment or order of the court in the Trial Division …”

Section 62(2) of the SCQ Act states:

“(2) Subject to an Act, a rule of court may provide that leave to appeal is required in proceedings specified in the rule”.

The UCPR are the relevant rules.⁶⁴
Chapter 18 of the UCPR applies, as this is an appeal to the Court of Appeal from a decision of the Supreme Court constituted by a single judge.⁶⁵
Rule 765 UCPR states:

“765 Nature of appeal and application for new trial

An appeal to the Court of Appeal under this chapter is an appeal by way of rehearing.

However, an appeal from a decision, other than a final decision in a proceeding, or about the amount of damages or compensation awarded by a court is brought by way of an appeal.

An application for a new trial is brought by way of an appeal.

There are two types of appeals under r 765 UCPR:Where r 765(2) applies, an appeal “by way of an appeal”: that is, an appeal stricto sensu.⁶⁶ The relevant question on the appeal is whether the judgment was correct when given.⁶⁷Otherwise, an appeal “by way of rehearing”. On a rehearing, broadly, the matter is considered again on the evidence from the hearing at first instance⁶⁸ but there is also a power to receive fresh evidence.⁶⁹
Therefore, the question that arises is whether the Leave Refusal Decision is a decision “other than a final decision in a proceeding”.⁷⁰
The Court of Appeal decision in Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262 provides some assistance as to what is a “final decision” for the purposes of r 765(2) UCPR.
Kambarbakis v G & L Scaffold Contracting Pty Ltd involved an appeal from a decision of a single judge dismissing an application for an order under s 31(2) of the Limitation of Actions Act 1974 (Qld) extending the limitation period. The same question arose as here: was the appeal from a “final decision” or not?
The Court of Appeal split on the classification of the decision.Holmes JA (as the Chief Justice then was) concluded that the decision refusing to extend time was not a “final decision” and accordingly the appeal was in the nature of an appeal stricto sensu.⁷¹McMurdo P concluded that the “practical effect” of the decision was to end any chance of success in any claim against the respondent and was therefore properly characterised as a final decision, with an appeal by way of rehearing.⁷²Muir JA agreed with Holmes JA but did not expressly decide this point as his Honour concluded the result of the appeal would not be affected by the categorisation of its nature.⁷³
Holmes JA observed at [31]:

“… I would … regard a refusal of an extension of the limitation period as not being a “final decision in the proceedings” … there is nothing to prevent an unsuccessful applicant from continuing with his or her action, although he or she will be met with an unanswerable defence, or from bringing another such application in the proceedings, unlikely though it would be to succeed. The appeal is, therefore, to be distinguished from that available under r 765(1); it is in the nature of an appeal stricto sensu.”

In contrast, McMurdo P observed:

“[3] The UCPR does not define the term “proceeding” ... In the context of r 765(2), it is clear that the term “proceeding” is intended to have a broader meaning to include all matters commenced by an originating process issued by the court whether by claim or application: see r 8.

[4] Rule 744 UCPR defines “decision” as used in r 765 as “an order, judgment, verdict or an assessment of damages”. In De Innocentis v Brisbane City Council,⁷⁴ Chesterman J, with whom Pincus JA and Thomas JA agreed, noted that the use in r 765 of the term “final decision” rather than “final judgment” is significant; “final decision” is a broader concept than that encompassed by “final judgment” … I consider the better interpretation of r 765(2) is that “a final decision in a proceeding” includes a decision by a Supreme Court judge refusing an application to extend a limitation period … This conclusion seems more consistent with the terms of s 69 and r 765 and the fact that the Court of Appeal is, for most purposes, the final appellate court in Queensland. In my view, this appeal is by way of rehearing. The well-established principles in House v The King⁷⁵ remain apposite to any appeal from discretionary aspects of an order extending or refusing to extend the limitation period.”

Chesterman J in De Innocentis v Brisbane City Council⁷⁶ in dealing with this issue stated at [34]:

“One looks only to see whether an appeal is brought from something which answers the description “final decision in a proceeding”. “Decision” has a wider connotation than “judgment”. There is no doubt the chamber judge made a decision. He struck out the appellant’s claim against the Council. This is final in the sense that it brought that claim to an end. The decision precludes further controversy on all questions involved in that claim. No further decision with respect to the claim is necessary or possible. The decision is therefore final”.

The second respondent submits that a refusal of leave under r 15 of the UCPR is a “final decision” for the purpose of r 765 and, accordingly, the appeal is by way of rehearing. The reasons for this conclusion are as follows:A grant of leave under r 15 UCPR may only be given if the applicant demonstrates that the originating process is not vexatious, frivolous or an abuse of process. The application of r 15 is confined to the originating process.Rule 8(1) UCPR provides that “a proceeding starts when the originating process is issued by the court.” An application is an originating process under r 8(2).The absence of the issue of an originating process has the same effect of not starting proceedings.
The appellant did not directly engage with this preliminary issue in his original submissions or at the hearing. It can be inferred that the appellant considered that this appeal is by way of rehearing as this is consistent with the appellant’s application to adduce fresh evidence. If the appeal was an appeal stricto sensu then it would be strictly limited to the material before the decision maker and there would be no basis for the application to adduce further evidence on the appeal.
The appellant’s submissions on costs dated 26 March 2024 do briefly address this issue, referring to the decision of Burns J in Lewis v Minister for Police and Corrective Services and Minister for Fire and Emergency Services⁷⁷ as being relevant.
The decision in Lewis v Minister for Police and Corrective Services and Minister for Fire and Emergency Services concerned r 16 UCPR which provides that the court may make certain orders including setting aside an originating process. Burns J stated at [3]:

“The power under UCPR r 16(e) to set aside an originating process will only be exercised in the clearest of cases. It is a power that is materially different in consequences to, for example, the power under UCPR r 171 to strike out a claim or statement of claim under UCPR r 171 which, when exercised, will not put an end to the proceeding unless leave to replead is refused.⁷⁸ In contrast, when the court orders that an originating process be set aside under UCPR r 16, the proceeding is summarily terminated.”

The appellant’s submission can be understood as that by analogy r 15 UCPR also summarily terminates an originating process and accordingly, a decision refusing leave is a final decision for the purposes of r 765 of the UCPR.
Rule 765 UCPR uses the word “decision”. This is not defined in the UCPR, however “order” and “judgment” are. Schedule 3 of the UCPR states relevantly:“order, except for chapter 8, part 2, division 2, includes a judgment, direction, decision or determination of a court whether final or otherwise.”⁷⁹“judgment -

a.for chapter 16, see rule 659; and

b.for chapter 20A, see rule 947A.”⁸⁰

Relevantly, r 659 UCPR states:

“Judgment

Final relief granted in a proceeding started by claim is granted by giving a judgment setting out the entitlement of a party to payment of money or another form of final relief.”

It has been recognised that “order” is wider and more expansive than “judgment” and encompasses outcomes where there is no judgment at all: for example, where a plaintiff in a claim is wholly unsuccessful resulting in the claim being dismissed.⁸¹
Equally, “decision” is wider than a “judgment” which is final relief in a proceeding started by claim. For example, a final outcome in respect of an originating application would not be a judgment but could be a final decision.
Accordingly, the difference in terminology used in the UCPR may be important when considering authorities considering different words and whether it is properly classified as “final”.
The Leave Refusal Decision has factors that potentially go both ways:It is final in that it determines the originating application seeking leave to file the JR Application. That is the end of the proceeding, as that is the only relief sought.⁸²It is not final in that the appellant could file another originating application seeking leave to file the JR Application or a revised version of the JR Application. Ultimately, the appellant may not be successful on any further application for leave, unless the appellant is able to frame the orders sought and the grounds relied upon in a way that satisfies the requirements of r 15.⁸³
Subsequent to the Leave Refusal Decision on 23 August 2023, there is no “live” proceeding in the trial division of the Supreme Court. The JR Application was not filed as a result of the direction that it could only be filed with leave and the originating application seeking leave was refused. The only current proceeding is the appeal to the Court of Appeal.
Other than this appeal, there are no further orders or other relief that are possible unless the appellant brings a new application for leave or seeks to commence new proceedings. The effect of the Leave Refusal Decision is final.
The very nature of a decision under r 15 UCPR is likely to be different to how a limitation issue may arise, as is evident from a consideration of the decisions in Kambarbakis v G & L Scaffold Contracting Pty Ltd and De Innocentis v Brisbane City Council. Rule 15 operates to prevent a proceeding being commenced unless a threshold test is met. A decision to refuse leave finalises that originating application and prevents the substantive originating proceeding commencing at all.⁸⁴

“[46] On an appeal of the present nature, it is for the appellant to satisfy this Court that the order that is the subject of appeal is the result of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 per Gaudron, McHugh, Gummow and Hayne JJ at 180-181 [23].

[47] Where … the alleged errors are in many respects alleged errors in fact finding, an appellant faces formidable (albeit not necessarily insurmountable) hurdles. An appellate court is required to exercise restraint when invited to interfere with a judge’s findings of fact, at least where those findings are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence.

[48] Thus in Fox v Percy (2003) 214 CLR 118 at 127 [26]-[27], Gleeson CJ, Gummow and Kirby JJ referred with approval to a trilogy of earlier cases, including the following observations of Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, as to the correct approach of an appellate court where findings of fact based on credibility are challenged:

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.⁸⁷ If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage”⁸⁸ or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.⁸⁹”

[49] That direction towards appellate restraint was emphasised by the High Court in Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679 per French CJ, Bell, Keane, Nettle and Gordon JJ at [43] in the following terms:

“The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review”⁹⁰ of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.⁹¹ But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”,⁹² or they are “glaringly improbable” or “contrary to compelling inferences”.⁹³ In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.”

[50] At first blush, that instruction seems to leave very little room for an appellate court to be persuaded of factual error. The passage was explained in the subsequent decision of Lee v Lee (2019) 266 CLR 129 per Bell, Gageler, Nettle and Edelman JJ at [55] in these terms:

“A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law.⁹⁴ Appellate restraint with respect to interference with a trial judge's findings unless they are “glaringly improbable” or “contrary to compelling inferences”⁹⁵ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.⁹⁶ Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”⁹⁷.” (bold emphasis added)

Similarly, in Doerr v Gardiner⁹⁸ the Court⁹⁹ stated in respect of the nature of an appeal by way of rehearing:

“[65] This Court is not authorised to intervene on an appeal by way of rehearing under s 61 of the Supreme Court of Queensland Act 1991 (Qld) and r 766 of the Uniform Civil Procedure Rules 1999 (Qld) merely so as to substitute its own view as if it were hearing the matter afresh.¹⁰⁰ Rather, the appeal court must consider whether the impugned factual findings were affected by material error.¹⁰¹ The demonstration of error is essential.¹⁰² The appeal court must conduct its review on appeal having regard to the way in which the parties chose to conduct their litigation for they are generally bound by their conduct of the trial and confined to the issues they litigated in it.¹⁰³

[66] The requirement to conduct a real review of the trial record and an evaluation of the trial judge’s reasons may nonetheless warrant this Court drawing its own inferences and conclusions:¹⁰⁴

“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”

[67] Whilst the appeal court may draw its own inferences or conclusions from primary findings of fact which are not disputed or which are not affected by error,¹⁰⁵ it is necessary to recognise the “natural limitations” in a review which proceeds “wholly or substantially on the record”.¹⁰⁶

[68] For that reason, there is a recognised reluctance to revisit factual findings which depend on credibility findings.¹⁰⁷ The appeal court proceeds with restraint when addressing those findings because its review is conducted without the benefit of the opportunities available to the trial judge to evaluate the credibility of each witness and to experience the “feeling” of the conduct of a trial which cannot always be “fully shared” from a reading of the evidence on the page:¹⁰⁸

“Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.”¹⁰⁹

[69] Nonetheless, in “some, quite rare, cases” though the facts fall short of being “incontrovertible” the appeal court may decide that the conclusion of the primary judge was “glaringly improbable” or “contrary to compelling inferences”.¹¹⁰ As the High Court explained in Lee v Lee:¹¹¹

“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.” (bold emphasis added)

[70] In that kind of case the appeal court must conduct its own review, making all due allowance for the advantages available to the primary judge and, if material error is disclosed, the appeal court cannot “shrink from giving effect” to its own conclusion.”

The Leave Refusal Decision was made taking into account affidavit evidence and submissions. Accordingly, the appellate court is in the same position as the judge at first instance and the issues in respect of witnesses identified in the extracts above do not arise.
Given the nature of an appeal by way of rehearing, the appellant’s application to adduce further evidence requires consideration.

Should the appellant be allowed to adduce the further evidence in the appeal?

The appellant applies to adduce fresh evidence pursuant to r 766 UCPR.
Rule 766(1)(c) UCPR relevantly states:

“General powers

The Court of Appeal …

may, on special grounds, receive further evidence as to the questions of fact, either orally in court, by affidavit or in another way…”.¹¹²

The appellant seeks to rely on an affidavit from himself:exhibiting a transcript of the cross-examination of TG¹¹³ by the appellant before Magistrate Pink on 13 November 2023; and extracting specific parts of the cross-examination with emphasis in the body of the affidavit.

(together, the Further Evidence on Remitter)

The Further Evidence on Remitter arose in the appellant’s cross-application for a protection order against TG which was remitted to the Southport Magistrates Court by part of the First Respondent’s Decision.¹¹⁴
In Jonathan v Mangera [2016] QCA 86, Morrison JA summarised the principles applicable to an application to adduce further evidence as follows:

“[12] The principles applicable to this application are not in doubt. Fresh evidence can be admitted if: (i) it could not have been obtained with reasonable diligence for the original hearing; (ii) it is such that, if given, it would probably have an important influence on the result of the case; and (iii) it is apparently credible.”¹¹⁵

This is not a case where there is any question whether the evidence could have been obtained with reasonable diligence for the original hearing.¹¹⁶ The Further Evidence on Remitter only came into existence:on the remitter to the Southport Magistrates Court which occurred following the hearing in the District Court and as a result of the First Respondent’s Decision;¹¹⁷ andafter the Leave Refusal Decision.¹¹⁸
The key consideration is whether the Further Evidence on Remitter is “such that, if given, it would probably have an important influence on the result of the case”.¹¹⁹
Put another way, is the Further Evidence on Remitter relevant to the determination of the issues in the appeal? This turns largely on the nature of the appeal by way of rehearing.
As identified above, the appellant must demonstrate an error of law, fact or in the exercise of a discretion. Accordingly, the appellant must show that there was an error in Martin SJA finding that the proposed JR Application was:Vexatious.¹²⁰Demonstrated no grounds upon which an order for certiorari might be made.¹²¹An abuse of process.¹²²Brought following an unsatisfactory explanation of delay¹²³ but that issue need not be considered as there was no proceeding on foot under the Judicial Review Act 1991 (Qld) (JR Act).¹²⁴
The appellant submits that the Further Evidence on Remitter is relevant in that it reveals a “psychotic aggrieved” who admits to “false accusations … to obtain an advantage”.¹²⁵
The appellant’s submissions refer to findings of Magistrate Howden at first instance and the findings of the first respondent in the First Respondent’s Decision. For example, the appellant submits that the Further Evidence on Remitter reveals that Magistrate Howden and the first respondent “wrongly blamed [the appellant] for all contact by TG”.

Are any of the appellant’s grounds of appeal made out?

The appellant raises five grounds of appeal, namely:Ground 1: “The Learned Justice erred in finding section 41C of the Domestic & Family Violence Protection Act 2012 is irrelevant to the protection order appeals by rehearing”.Ground 2: “The Learned Justice erred in allowing an abuse of process by a model litigant to repeatedly relitigate dismissed applications until they won”.Ground 3: “The Learned Justice erred in his construction of Certiorari”.Ground 4: “The Learned Justice erred in finding grounds of bad faith was not a basis of certiorari”.Ground 5: “The Learned Justice erred in finding grounds of unreasonableness was not a basis of certiorari”.
The appellant does not raise any ground of appeal in respect of the conclusion at [12] of the reasons for the Leave Refusal Decision, namely:

“The absence of grounds for the first, third or fourth orders means that the JR Application is, to that extent, vexatious”.

The grounds of appeal arise out of Martin SJA’s consideration of the following issue:

“whether the JR Application and the accompanying affidavit disclose any jurisdictional error sufficient to support an order of certiorari”.¹²⁸

The appellant identified five grounds for jurisdictional error which were summarised by Martin SJA as follows:

“[22] The applicant submitted that there were five grounds for jurisdictional error. They are:

[the first respondent] acted in bad faith on two occasions by concealing or not allowing exculpatory evidence (grounds 1 and 6 in the accompanying affidavit);

[the first respondent] made an incorrect statement regarding a DVFP s 151 application made during the Magistrates Court hearing, which the second respondent did not correct (ground 2);

section 41 of the DVFP Act requires both an originating application and a cross-application for a protection order to be heard and determined at the same time (ground 3); and

[the first respondent] fabricated statements to bolster the Decision (ground 4).

[23] There was a sixth ground (ground 5) which was unrelated to any basis for certiorari. The ground was bizarre – an assertion that “the courts endorsed the aggrieved stating that she was thinking about raping and killing children, and any reaction to it was domestic violence.” No attempt was made to show how this perverse argument related to the decision.”

The grounds of appeal appear to correlate with these grounds for jurisdictional error.

Ground 1

Ground 1 raises s 41C of the Domestic and Family Violence Protection Act 2012 (Qld) (DVFP Act). This was considered by Martin SJA as the third ground of jurisdictional error:

“The third jurisdictional challenge was a submission that DVFP s 41C(2) required the judge to hear and determine both the original application and the cross application or to have both applications remitted to the Magistrates Court.”

His Honour:Considered the High Court decision of Stanley v Director of Public Prosecution (NSW)¹²⁹ relied upon by the appellant and concluded that the authority did not assist the appellant.¹³⁰Construed s 41C(2) of the DVFP Act as requiring a court to:¹³¹hear the original application and cross application together; andto consider whether it necessary to make arrangements for the safety, protection or well-being of the person most in need of protection in the relevant relationship.Further, concluded that:¹³²

“This requirement is only in respect to an original application, a cross application or in a variation to the protection order. It does not refer to appeals, even though appeals can be conducted by way of a rehearing.¹³³”

Applied this to the facts and concluded that the First Respondent’s Decision dealt with an appeal from an originating application and a cross-application and consequently s 41C(2) was not relevant to the appeal determined by the first respondent.¹³⁴

Considered s 169 of the DVFP Act which provides that the appellate court may “confirm”, “vary”, “set aside ... and substitute” or “set aside … and remit” the decision appealed against. There is no requirement to remit both matters.

Consequently, found that both the remitter of the cross-application and the confirmation of the original application for a protection order were within the District Court’s jurisdiction.¹³⁵

The appellant’s submissions refer to errors by the Magistrate at first instance and by the first respondent on appeal. That is not the relevant issue here. The issue is whether there was an error of fact or law by Martin SJA in considering whether s 41C of the DVFP Act applies in respect of appeals.
The appellant contends in the Notice of Appeal that:

“The Legislature regarded both applications as part of 1 proceeding. As an appellate court, the First Respondent had no power to ‘split’ the proceeding or ignore all evidence from the cross application when assessing the evidence and credibility of “TG”’s accusations in the original application. … The Learned Justice should not have regarded this ground of certiorari as vexatious”.

This contention can be understood as identifying an alleged error in the reasoning of Martin SJA.
Section 41C is in Division 1A of the DVFP Act and states:

“(1) This section applies if—

either—

the original application and cross application are before the same court; or

the variation application and cross application are before the same court; and

the court is aware of both applications.

The court must—

hear the applications together; and

in hearing the applications, consider—

the principle mentioned in section 4(2)(e); and

Note—See, for example, sections 150 and 151 for the power of the court to make orders in relation to a person giving evidence or being cross-examined as a protected witness.

If the court decides to adjourn the hearing of either application or both applications, the court must consider whether to make a temporary protection order under division 2 in relation to each adjourned hearing.”

Section 41C is part of a number of provisions which specify the approach to when there are multiple applications, which are defined as the “originating application” and the “cross-application”.¹³⁶
The provisions refer to a “court” and s 6 of the DVFP Act defines court as follows:

“Court means—

if an application is made to a Magistrates Court—the Magistrates Court; or

if an application is made to a magistrate—the magistrate; or

if a court convicts a person of a domestic violence offence—the court that convicts the person; or

if the Childrens Court is hearing a child protection proceeding—the Childrens Court.”

Relevantly, here the originating application and the cross-application were made to a Magistrates Court or magistrate.
The dictionary in the Schedule to the DVFP Act defines “appellate court” as follows:

“appellate court means—

for a decision made by the Magistrates Court, or the Childrens Court constituted by a Childrens Court magistrate or a magistrate—the District Court; or

for a decision made by the District Court, the Supreme Court, or the Childrens Court constituted by a District Court judge—the Court of Appeal.”

Relevantly, here the District Court is the appellate court.
Various powers are given to a “court” in the DVFP Act. Section 136 of the DVFP confers jurisdiction on a “court” to hear and decide any application made to the court under the DVFP Act.
Specific powers are given to an “appellate court” in s 169 of the DVFP Act. Section 169 states:

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

confirm the decision appealed against; or

vary the decision appealed against; or

set aside the decision and substitute another decision; or

set aside the decision appealed against and remit the matter to the court that made the decision.

The decision of the appellate court upon an appeal shall be final and conclusive.”

The appellant’s contention must be that the appellate court is a court for the purposes of s 41C and accordingly the District Court in hearing an appeal is constrained by s 41C(2) to deal with the originating application and the cross application together in the exercise of any of the powers under s 169, including a remitter.
This does not accord with the proper construction of the operation of s 41C. Section 41C does not provide that the originating application and the cross application are in effect “one proceeding” and must stay and be dealt with together. This is inconsistent with a number of aspects of s 41C itself, namely:s 41C(2)(a) expressly carves out where the court considers it is “necessary” to hear the applications separately for “safety, protection or well-being”.s 41C(2)(b) expressly recognises the principle in s 4(2)(e) which provides

“in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection—

the person who is most in need of protection in the relationship should be identified; and

s 41C(4) provides that if the court decides to “adjourn the hearing of either application or both applications” the court must consider whether to make a temporary protection order in relation to “each adjourned hearing”. (bold emphasis added).

These provisions are consistent with the originating application and the cross application not being “one proceeding” and that they can, or in fact should, in certain circumstances be dealt with separately.
There are other provisions which tend to support the conclusion that the appellate court is not “a court” for the purposes of Part 5 generally, nor specifically s 41C, of the DVFP Act. These include the following:The UCPR applies to an appeal under the DVFP Act,¹³⁷ but not a proceeding in a court.¹³⁸In respect of an application for a stay of the operation of a decision or to prevent the taking of action to implement a decision, “the court or the appellate court” may make an order.¹³⁹ Further, “the court or the appellate court” may act on the application of the appellant or on its own initiative.¹⁴⁰An appeal “must be decided on the evidence and proceedings before the court that made the decision being appealed.”¹⁴¹ However, the appellate court may order that the appeal be heard “afresh, in whole or part”.¹⁴²The decision of the “appellate court upon an appeal shall be final and conclusive”.¹⁴³
The appellant’s position must be understood that if an appellate court determined that either an originating application or a cross-appeal needed to be remitted then both must be remitted, even if there was no basis to justify the remitter of the other one. The appellant’s construction would require the appellate court to remit even where the appellate court would otherwise confirm a decision. This outcome is inconsistent with the express provision that the decision of the appellate court is “final and conclusive”.
The powers that may be exercised by an appellate court are set out in s 169(1) of the DVFP Act. There is no requirement that both an originating application and cross-application are dealt with together or remitted together. The requirement in s 41C can have no operation in respect of an appeal being dealt with by the District Court.
No error has been established in respect of the construction and operation of s 41C of the DVFP Act. Accordingly, ground 1 has not been made out.

Ground 2

Ground 2 raises alleged abuses of process by consecutive applications under s 151 DVFP Act to restrict cross-examination. This was considered by Martin SJA, at least in part, as the second ground of jurisdictional error.
The appellant’s complaint appears to be that the second respondent made a number of applications to restrict cross-examination in circumstances where the applications had been previously dismissed and this was an abuse of process.
Further, the appellant’s complaint seems to be directed at:The second respondent for making multiple applications pursuant to s 151 of the DVFP Act and for not correcting a statement by the first respondent that a s 151 application in the Magistrates Court had not been dismissed, when it had been.The first respondent for stating that a s 151 application in the Magistrates Court was not dismissed, when it was.
In respect of any error by Martin SJA in the Leave Refusal Decision, the appellant identifies:“Other litigants may follow the example permitted by Justice Martin”.¹⁴⁴“The Learned Justice fell into error by allowing an abuse of process, showing other litigants it’s okay to repeatedly relitigate dismissed applications and be rewarded”.¹⁴⁵“The Learned Justice should not have regarded an abuse of process as a vexatious ground of Certiorari”.¹⁴⁶
In the Leave Refusal Decision, Martin SJA deals with this issue as follows:Identified that during submissions the first respondent corrected the appellant by stating the prosecution could withdraw an application, but not dismiss it. Further, only a court could dismiss an application.¹⁴⁷Considered the Verdict and Judgment Record notation that the Magistrate dismissed the original s 151 application.Observed that “[w]hether the [first respondent] knew that is not clear, but it is irrelevant” and at most might demonstrate the first respondent “misapprehended the disposition of that matter in the Magistrates Court”.¹⁴⁸Concluded that this “does not support a conclusion that there was jurisdictional error”.
To the extent that this ground is the same as what was considered by Martin SJA, no error has been established.
To the extent that this ground is wider and encompasses an error of permitting this sort of behaviour, this is not a basis to found jurisdictional error. Further, it does not establish an error by Martin SJA.

Ground 3

Ground 3 raises an alleged error in the “construction of Certiorari”.
The appellant’s Notice of Appeal states:

“The supervisory jurisdiction of a State Supreme Court to issue Certiorari for error of law on the face of the record and jurisdictional error is the correct relief for a final and conclusive privative clause. The First Respondent conducted an appeal by rehearing. Certiorari may be available when an inferior court, for example, “misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”, acts of bad faith or fraud, unreasonableness, and so on. While I submit the Learned Justice wrongly held no ground met the threshold or jurisdictional error, the grounds were still plainly House v King errors of law amenable to Certiorari. The Learned Justice should not have regarded Certiorari for the ground as vexatious.” (emphasis in original)

In considering the question of what grounds will support an order for certiorari, Martin SJA stated at [21]:

“A court of limited jurisdiction (such as the District Court) will fall into jurisdictional error:

if it mistakenly asserts or denies the existence of jurisdiction; or

if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such a court does not commit jurisdictional error whenever it addresses the wrong issue or asks itself the wrong question.¹⁴⁹”

His Honour did not decide that certiorari would never be available in respect of a decision by the District Court exercising appellate jurisdiction which was final and conclusive. That relief would potentially be available if grounds establishing jurisdictional error were properly articulated.
His Honour determined that the JR Application and its accompanying affidavit “demonstrate no grounds upon which an order for certiorari might be made”.¹⁵⁰ It was in this context that his Honour concluded, “[i]t is vexatious and an abuse of process.”
No error has been established in respect of the “construction of Certiorari”. Accordingly, ground 3 has not been made out.

Ground 4

Ground 4 raises an alleged error in “finding grounds of bad faith was not a basis of certiorari”. This was addressed by Martin SJA as the appellant’s first and sixth grounds of jurisdictional error: namely, that the first respondent “acted in bad faith on two occasions by concealing or not allowing exculpatory evidence.”¹⁵¹ It possibly also includes the consideration of ground 4 dealing with the first respondent allegedly fabricating statements to bolster the First Respondent’s Decision.¹⁵²
In the Notice of Appeal, the appellant describes the error as “the Learned Justice should not have regarded the evidence of bad faith to be a vexatious ground of certiorari”.¹⁵³
In dealing with the matters relevant to this ground, Martin SJA:Identified that the alleged conduct of the first respondent was disregarding matters required to be taken into account and concealing exculpatory evidence.¹⁵⁴Considered the transcript of the exchanges between the appellant and the first respondent relied upon by the appellant in respect of this issue.¹⁵⁵Concluded that the exchanges did not demonstrate exculpatory evidence being concealed.¹⁵⁶
Ultimately, Martin SJA concluded that the exchanges were a statement by the first respondent that the submissions and evidence were not relevant to the question of whether there was an error by the Magistrate in relation to the protection order against the appellant.¹⁵⁷
Further, in respect of the allegation of the first respondent fabricating statements, Martin SJA concluded that the “assertion is entirely without foundation and is scandalous”.¹⁵⁸
Again, the appellant’s submissions refer to errors by the Magistrate at first instance and by the first respondent on appeal. That is not the relevant issue here. The issue is whether there was an error of fact or law by Martin SJA in considering whether the allegations of bad faith could be a proper basis for any jurisdictional error sufficient to support an order for certiorari.

Ground 5

Ground 5 raises an alleged error in “finding grounds of unreasonableness was not a basis of certiorari”. This was addressed by Martin SJA as the appellant’s fifth ground of jurisdictional error as follows:¹⁵⁹His Honour observed that this ground was “unrelated to any basis for certiorari” and the “ground was bizarre”.His Honour concluded that “[n]o attempt was made to show how this perverse argument related to the decision”.
The appellant asserts that:¹⁶⁰“the Learned Justice rightly called this subject matter “perverse”, it was not open for him to regard this ground of unreasonableness as “unrelated to Certiorari”.”“The Learned Justice should not have regarded “unreasonableness” grounds of certiorari as vexatious, or had no evidence.”
The appellant’s complaint is difficult to understand. The complaint appears to be that there was some evidence that TG had a psychiatric condition where she thought about “raping or killing children” and that by the Magistrate finding that steps taken by the appellant to stop that thinking by TG was domestic violence, the court endorsed that behaviour.
Again, the appellant’s submissions refer to errors by the Magistrate at first instance and by the first respondent on appeal. That is not the relevant issue here. The issue is whether there was an error of fact or law by Martin SJA in considering whether the allegation could be a proper basis for any jurisdictional error sufficient to support an order for certiorari.
No error has been established in respect of the additional ground of unreasonableness. Accordingly, ground 5 has not been made out.

General ground

The appellant contends in the conclusion to his submissions that:

“After applying the test of Rule 15 to dismiss a prerogative order of review, this court can be satisfied that an error or law or jurisdictional error occurred, and it is amenable to a prerogative order of review in the nature of certiorari. There is sufficient evidence to advance this matter to a judicial review directions hearing. It is open to this court to determine the grounds only to overcome Rule 15 of the UCPR, or to determine the grounds conclusively to create a precedent that compels the Trial Division. Leave to issue a prerogative order of review should be granted.”

If this submission articulates a ground of appeal separate to the individual grounds, that ground is not made out.
It is not for this Court to undertake the hearing afresh. The exercise on an appeal by way of rehearing is as outlined above. It is for the appellant to satisfy this Court that the Leave Refusal Decision is the result of some legal, factual or discretionary error. No error has been established.

Should the Court deal with the New Argument and, if so, what is the appropriate relief?

At the hearing, reference was made to the paragraphs in the First Respondent’s Decision summarising the approach on an appeal by way of rehearing. The first respondent relevantly stated:

“[11] A right of appeal exists pursuant to s 164 of the [DFVP] Act for a person aggrieved by the making of a domestic violence order or the refusal to make one. As is clear from s 168 of the [DFVP] Act the appeal is a rehearing to be decided on the evidence and proceedings before the court that made the decision although there is a residual power to order the appeal be heard afresh in whole or part. Such application is made in this matter to adduce further evidence consisting of a letter written by the first respondent to the prosecutor dated 16 September 2021. That was relied upon, for amongst other reasons, on the basis that the second respondent is alleged to have sought to withhold exculpatory evidence from the court.

[14] I allowed the admission of that document largely because it was a document which had been considered below. It should not be thought in relation to that that I was otherwise satisfied any of the appropriate tests for admission of fresh evidence were applicable.

[13] Section 168(2) aside, the principles applicable to an appeal by way of rehearing are well settled. It is necessary for the appellate court to conduct a real review of the evidence recognising the advantage to the primary judge of seeing and hearing that evidence.

[14] If the appellate in an appeal such as this is to succeed, it must be shown that the result below was a result of an error.¹⁶¹

[15] The question is not whether the appellate court may have come to a different conclusion. Instead, the relevant question is whether or not the decision reached by the primary court was reasonably open on the evidence before it.”¹⁶²

This formulation by the first respondent, particularly the second sentence of [15], was criticised as not being a proper description of the task to be undertaken by an appellate tribunal conducting an appeal by rehearing.
The appellant did not raise any ground or contention in respect of the first respondent’s formulation of the approach applicable to an appeal by way of rehearing in the application for leave before Martin SJA. The issue was touched on in oral submissions in this appeal and the appellant accepted that it had not been previously raised. A review of the transcript confirms this: there is no articulation of a ground or contention based on the first respondent making an error of law of this character.¹⁶³
The appellant’s New Argument can be understood as a separate and distinct basis for alleging jurisdictional error by the first respondent: namely that the first respondent misapprehended the nature of the appeal.
The Registrar’s letter to the parties requested brief submissions as to:whether the Court should deal with the New Argument; andif yes, whether the parties wanted to make any further submissions in relation to ss 46 and 48 of the JR Act.
In the further submissions provided, the second respondent acknowledges that the Court does have a discretion to allow the appellant to raise the New Argument if it is “expedient and in the interests of justice to do so”.¹⁶⁴ The factors relevant to the exercise of the discretion are:Whether the argument has any merit?¹⁶⁵Whether it is purely a question of law?¹⁶⁶Any reasonable explanation for the argument not having been made at first instance?¹⁶⁷
Further, the second respondent acknowledges:That the second and third factors may be met as the nature of the appeal to the District Court under the DFVP Act is a question of law and the appellant is unrepresented.The first factor is likely to be satisfied where there is an important question of law and the facts are not in issue.¹⁶⁸Whilst these factors favour permitting the New Argument to be made, considering the whole of the First Respondent’s Decision there was no jurisdictional error by the first respondent and the appeal was, in fact, conducted by way of a rehearing.

“… in my opinion, the appellate court ought not to reverse the findings of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding.”

The statement at [15] recognises the limitations of an appellate judge conducting a rehearing and deciding facts, including the limitations on appeal courts overturning facts.

Paragraphs [13] and [14] should be read contextually with [15].

Whilst on a rehearing the court makes its own determination of the relevant facts in issue, the court must also give “due deference”, giving “a good deal” of weight to the views at first instance.¹⁷⁰

In McDonald v Queensland Police Service¹⁷¹ the Court of Appeal considered an argument that the appellant was denied an appeal by way of rehearing under s 222 of the Justices Act 1886 (Qld). It is submitted that the language used by the District Court Judge at first instance in that case is consistent with the first respondent’s language in the First Respondent’s Decision.¹⁷² The Court of Appeal dismissed the appeal and stated:

“[47] It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.¹⁷³ Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.¹⁷⁴

[48] It is clear, particularly from [14] – [18] of the decision below, that the District Court judge reviewed the evidence that was before the Magistrate, and formed his own view of it, leading to the conclusion that, in the challenged respects, he could see no basis to overturn the Magistrate’s factual findings.”

The first respondent conducted an appeal by way of rehearing, including as evidenced by:At [6], “my review of that evidence”.At [28], “upon review of the evidence”.At [32], “In my view, while I will address the grounds specifically shortly, it can immediately be said that upon my review of the evidence, it was open to his Honour to take the view of it that he did”.

The first respondent conducted a rehearing consistent with McDonald v Queensland Police Service and accordingly, the first respondent did not make a jurisdictional error by misapprehending his functions or powers¹⁷⁵ on an appeal under ss 168 and 169 of the DFVP Act.

If leave is granted under r 15 UCPR, the Court may still refuse leave under s 46 of the JR Act to extend time on the basis that the explanation for the delay is unsatisfactory¹⁷⁶ and the New Argument lacks prospects such as to warrant an extension of time.

Whilst it is open that the Court considers that leave should not be refused under r 15 UCPR because the New Argument is not frivolous, vexatious or an abuse of process, it is also open to conclude there is no reasonable basis for the application pursuant to s 48(1)(b) of the JR Act as the first respondent did not misapprehend his functions or powers on appeal.

In respect of the substance of the New Argument, the appellant contends:The approach taken by the first respondent is contrary to *McDonald v Queensland Police Service.*The judge at first instance in McDonald v Queensland Police Service identified the steps undertaken to review the evidence and particularised both sides’ evidence, evaluated the merits of the competing arguments and came to his own conclusion on that evidence. This is particularly so given the High Court decision in Lee v Lee.¹⁷⁷The first respondent did not particularise the facts in dispute and declined to come to his own conclusions as long as it was “open to the Magistrate”. The first respondent applied the test for witness demeanour to all evidence, including documentary evidence, for which the appellate court is in as “good a position” as the trial judge.The first respondent failed to decide for himself the facts in issue. This is not a “mere error of law” but is a failure of the Court to exercise its powers and duties.That time should be calculated from when the appellant first became aware certiorari was the correct approach and there is a basis to extend time.The Court should be satisfied that leave be granted to issue the proceeding and there is sufficient error to remit the matter to the District Court as further litigation for certiorari would be futile when error is apparent.
As a general proposition, as recognised in Doerr v Gardiner¹⁷⁸ above, it is necessary that error is identified and established. Further, this Court conducts appeals having regard to the way in which the parties chose to conduct their litigation as they are generally bound by their conduct of the trial and confined to the issues litigated.
However, the Court does have a discretion to allow a new argument to be raised on an appeal which was not raised at first instance. On balance, the factors relevant to the exercise of the discretion favour allowing the New Argument to be raised on the appeal. The New Ground gives rise to a question of law as to how a District Court Judge exercising appellate jurisdiction is to conduct an appeal under the DFVP Act. The nature of the New Argument is such that it is in the interests of justice that this Court hear and determine the issue.
It is then necessary to consider whether the first respondent made a jurisdictional error by misapprehending his functions or powers.
The task undertaken by the first respondent is shown by the First Respondent’s Decision to be as follows:Prior to considering the specific grounds the first respondent observed that “it can immediately be said that upon my review of the evidence, it was open to [the Magistrate] to take the view of it that he did.” The first respondent then went on to consider the 21 specific grounds raised and concluded that no errors were made out.The first respondent’s approach included:summarising the grounds of appeal;identifying the nature of the appeal;identifying the relevant statutory provisions;summarising the factual background;identifying the findings below; andconsidering the submissions of the parties in respect of the specific grounds of appeal and in doing so finding each ground not to be established.

Costs

On 23 August 2023, Martin SJA ordered as follows:

“1. The Applicant pay the Second Respondent’s costs, on the standard basis.

No order as to costs of the Second Respondent’s application to stay.”

The appellant raises a number of matters in respect of the costs order:The appellant is financially disadvantaged, being on welfare and a single parent with 100% care.The appellant was denied access to justice, including by the nature of legal advice previously provided to him about the availability of review of the First Respondent’s Decision.The conduct of the respondents invited litigation and the second respondent’s lawyers should not be “rewarded” for “wastefully misleading the courts”.While the New Argument was not raised before Martin SJA, the appellant raised the inadequacy of reasons of the first respondent.There is public interest in identifying the correct approach on appeal, including whether there has been a “systemic error” in police protection appeals.
Ultimately, the appellant submits that even if he is unsuccessful on the appeal, the costs order should be varied to:Set aside the costs order of Martin SJA; andThere be no order as to costs.
In respect of costs, the second respondent contends as follows:Before Martin SJA, the usual rule in relation to costs applied and costs followed the event on the standard basis.The application was pursuant to r 15 UCPR and was not a review application. Accordingly, s 49(2) of the JR Act did not apply.The appellant has not shown any special or exceptional circumstances to warrant a departure from the usual rule.There was no error by Martin SJA in determining the question of costs.The financial circumstances of the appellant are not of themselves a ground for refusing to make a costs order, consistent with the comments in Sochorova v Commonwealth of Australia.¹⁸⁰ In that case the Court of Appeal stated at [17]:

“Because the basis of a costs order is compensatory rather than punitive, the fact that an unsuccessful party is not legally represented or is impecunious or otherwise disadvantaged is not in itself a ground for refusing to make a costs order in favour of the successful party.”

In all of the circumstances, no error is made out in relation to the costs order made by Martin SJA on 23 August 2023.

Conclusion

None of the grounds of appeal are established and the New Argument does not establish a basis for jurisdictional error by the first respondent to justify a grant of leave to file an amended originating application. Accordingly, I would order that the appellant’s appeal be dismissed.
The parties should be heard further in respect to costs of the appeal.

Footnotes

see Lynch v Commissioner of Police [2022] QCA 166 at [60]-[70] per Beech AJA (with whom Morrison and Bond JJA agreed) and Madden v Commissioner of Police [2023] QCA 31 at [26]. ↩
[2000] QCA 288. ↩
[2008] QCA 262. ↩
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [98]-[100]. ↩
Craig v South Australia (1995) 184 CLR 163 at 177. See also the interesting discussion by Colvin J, writing extra-judicially, in Reviewing judicial power for jurisdictional error: some recent migration cases (2022) AIAL Forum No. 104 at pp 47-62. ↩
The leading High Court authorities governing the approach of appellate judges on appeals by way of rehearing are conveniently identified and summarised in Sutton v Hunter [2022] QCA 208 at [46]-[51] per Bond JA, with whom Crow J and Mellifont J agreed. ↩
DU v TG [2022] QCA 225. ↩
DU v TG [2023] HCASL 79. ↩
Judicial Review Act 1991 (Qld). ↩
Standard Discount Co v La Grange (1877) 3 CPD 67, 69-70, cited in Hall v Nominal Defendant (1966) 117 CLR 423, 443. ↩

DU v Jackson

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