KAV v Magistrate Bentley & Anor [2016] QSC 46

The application should be dismissed for want of prosecution, and for the reasons expressed hereunder."

[23] The outline went on to mount an argument that the proceeding had been brought for the collateral purpose of obtaining material for use in reporting the second respondent to government agencies and for use in family law proceedings.

[24] The outline drew support from reference to correspondence which was not filed or exhibited before or at the mention. This included reference to letters, touching upon costs between the legal representatives, of 8 October and 13 October, each of which had been endorsed "without prejudice".[5]

[25] At the outset of the review mention the applicant's counsel informed the court:

"Your Honour, the applicant intends to withdraw her application today."

[26] The second respondent's counsel responded:

"Your Honour, that's - in light of the interpretation that my learned friend is placing on section 157 with regard to costs, that application is opposed. As in, the application to withdraw. ... for the obvious reason ... that it's a blatant attempt to circumvent a costs application."

[27] The learned Magistrate said in the course of the review:

"I mean, I suppose one issue that did occur to me - and I haven't looked at it in any detail - is whether I can refuse an application to withdraw. I suppose it is an application. So---"

[28] The second respondent's counsel indicated he was not then in a position to argue that issue. It is not apparent why. The second respondent's representatives were on notice the applicant was withdrawing and his counsel's outline shows it was understood that was to occur at the review mention. Her Honour considered the issue needed to be argued and directed the second respondent's counsel to submit further written submissions on the point by 16 October 2015 and the applicant to file submissions in response by 23 October 2015. The matter was listed for argument on 11 November 2015. The fact the hearing date was set for 27 October was not expressly addressed but it is implicit in the argument being listed for 11 November that the forthcoming hearing date was treated as vacated.

[29] When the review mention resumed for argument on 11 November 2015 there were no further oral submissions in respect of the exercise of the court's power to prevent the withdrawal of an application for a protection order. Her Honour proceeded to dismiss what she characterised as the "application to withdraw", giving reasons. In doing so she expressed the view that the pushing allegation was the only allegation capable of amounting to domestic violence.

[30] Further argument then ensued, in the course of which her Honour indicated she did not agree that she could "strike out" the application, as had been sought by the second respondent's counsel, because if she did so she could not award costs. She pointed out that if the second respondent wanted her to award costs the application had to be heard and determined.

[31] The applicant's counsel indicated, consistently with the applicant's desire to withdraw the application, that she did not wish the matter to be heard. Her Honour indicated she was happy to hear and determine the matter on the material before her that day, intimating, in effect, that she would either proceed to hear the matter that day or hear an application for an adjournment by the applicant for the matter to be heard on some subsequent day.

[32] A short adjournment occurred to allow instructions to be taken and on resumption the applicant's counsel said:

"Your Honour, my instructions are that given your Honour's earlier ruling about the application to withdraw, the aggrieved wishes, if your Honour is minded to hear the matter, despite her earlier attempts to withdraw it, she wishes your Honour to hear that on the papers."

[33] It is obvious that course was taken because the presiding Magistrate had by this stage made plain her intention, come what may, to press on and hear and decide the matter.

[34] Her Honour proceeded to indicate she had read the material and invited submissions as to whether she should make a domestic violence order. In light of the applicant's desire not to pursue the application, the applicant's counsel submitted there was no need to make the protection order.

[35] Her Honour found that the applicant's claim was frivolous, that the grounds contained in it were insufficient on which to base an application for a domestic violence order and that the application was made in order to assist the applicant in her property settlement proceedings. Her Honour ruled:

"I dismiss the application having heard it on the basis that it was frivolous."

[36] Such a ruling meant the three elements of s 157 were met. Her Honour proceeded to order the applicant to pay the respondent's costs to be assessed, certifying that both solicitor and counsel were justified in the matter.

[37] The applicant seeks a declaration that her application for a protection order is withdrawn and an order quashing the decision dismissing her application to withdraw and awarding costs against her.

[38] That relief is sought pursuant to pt 5 of the Judicial Review Act 1991 (Qld) which in effect continues the court's power to grant a relief or remedy of the kind previously provided by way of a writ of mandamus, prohibition or certiorari and confers the right to make application for a declaration even if a prerogative order is not sought.

[39] The second respondent relies upon s 13 of the Judicial Review Act to argue at the threshold that the application ought be dismissed. Section 13 provides:

"13. When application for statutory order of review must be dismissed

Despite section 10, but without limiting section 48, if -

(a) an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and

(b) provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person;

the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so."

[40] Counsel for the second respondent submitted the applicant could seek a review of the matter by an appeal to the District Court and that it was not in the interests of justice for this judicial review application to proceed.

[41] It was submitted that s 164 of the DFVP Act affords an aggrieved spouse that right of appeal. Section 164 provides:

A person who is aggrieved by any of the following decisions of a court may appeal against the decision -

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

(b) a decision to vary, or refuse to vary, a domestic violence order;

(c) a decision to refuse to make a protection order;

(d) if the person sought a temporary protection order in a proceeding under this Act - a decision to refuse to make the order."

[42] The decision prompting the present application is the decision to not permit the applicant's withdrawal of her application. If that decision was wrong and the application should have been regarded as withdrawn, then the presiding Magistrate had no jurisdiction to proceed to hear the matter and decide to make the ensuing orders.

[43] The reviewable matter[6] here is the decision to prevent the withdrawal of the application. That is not a decision referred to in s 164 of the DFVP Act. However the second respondent contends it was an interlocutory step which was, in effect, part of the decision to "refuse to make a protection order". The second respondent is in effect contending for the curious position that the applicant has the right to appeal against the refusal of an order she was not seeking.

[44] In the High Court, in Gerlach v Clifton Bricks Pty Ltd[7] the plurality affirmed the general principle that on appeal from a final order an appellate court may correct any interlocutory order that affected the final order:

"In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about what evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.

It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. ...

The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that "On an appeal from the final order an appellate court can correct any interlocutory order which affected the final result (emphasis added)."[8]

[45] The decision not to permit the withdrawal of the application was not an interlocutory decision falling within the principle discussed in Gerlach's Case.

[46] It was quite different than the example, cited in Gerlach's Case, of evidentiary rulings. Evidentiary rulings affect the final result because they affect the substance or merits of what is before the court in deciding whether to make or refuse an order. The only sense in which the decision here affected the final result is that the matter remained before the court. Of itself that fact had no bearing upon whether or not an order should be made.

[47] Even if the above conclusion is incorrect, the obligation to dismiss the application pursuant to s 13 only arises if I am "satisfied, having regard to the interests of justice" that I should do so. I would not in any event be so satisfied, because the merits of the application have been fully argued in this forum without disadvantage to either party.[9]

An applicant's right to withdraw an application for a protection order

[48] The DFVP Act does not make express provision for the withdrawal of a complaint. However, pursuant to s 142 of the DFVP Act, the Domestic and Family Violence Protection Rules apply for a proceeding in a court under the DFVP Act. Those rules do make provision for the withdrawal of an application. Rule 50 provides:

(1) An applicant may withdraw a DFVP application before a DFVP court decides the application in 1 of the following ways -

(b) in writing to the clerk of the DFVP court (an application to withdraw).

(2) An application to withdraw must state the following -

(a) the name of the person withdrawing the DFVP application;

(b) the role of the person in the proceeding that is to be withdrawn, including whether the person is, represents or is acting on behalf of, a party to the proceeding;

(c) the proceeding in which the application is to be withdrawn, including the name of the parties and the file number;

(d) the date of the next court appearance for the proceeding, if the person knows the date.

(3) If the clerk of the DFVP court receives an application to withdraw, the clerk must send a copy to the nearby police officer for service on the other parties in the proceeding.

(4) The nearby police officer must personally serve a copy on the other parties in the proceeding.

(5) A DFVP court may decide an application to withdraw without the parties appearing, unless a DFVP court orders otherwise. ..."

[49] Rule 50(1)(a) confers an apparently unqualified right upon an applicant for a protection order to withdraw the application orally during a proceeding in a Domestic and Family Violence Protection Court before the court decides the application. The balance of the rule is concerned with what the rule describes in short form in r 50(1)(b) as "an application to withdraw". That is, where an applicant withdraws the protection application in writing to the Clerk of the Court. The use of that short form description in r 50 appears to have resulted in the parties in the court below referring to the applicant's attempt to withdraw the application for a protection order on 15 October 2015 as an "application" to withdraw, notwithstanding that it occurred orally during the proceeding rather than in writing to the Clerk of the Court.

[50] The second respondent submitted that the reference in r 50(5) to the fact that the court may "decide" an application to withdraw carries with it the implication generally that a court must have the power to refuse the withdrawal of an application regardless of whether the purported withdrawal occurs in writing or orally in court. However the reference to "decide" in r 50(5) is only to a court deciding "an application to withdraw" which, in the context of r 50, only relates to a purported withdrawal in writing to the Clerk of the Court. The notion that a court may "decide" a purported withdrawal in writing to the Clerk of the Court but has no particular decision to make in the event of a withdrawal made orally during a proceeding is consistent with the structure of r 50's machinery provisions regarding written applications. Those provisions herald a need for care in ensuring all parties are made aware of the written application and the potential need to require the appearance of the parties, neither of which needs are likely to be present when an application is made orally during the proceeding in court.

[51] It might be that a power to prevent a withdrawal of an application for a protection order can be implied, from the court's power to control and prevent an abuse of its own process,[10] for the narrow purpose of preventing a withdrawal which is not genuinely made because the applicant is acting under duress. However that does not fall for determination here because that was not the basis for refusing the withdrawal.

"The discretion to grant or refuse leave to discontinue is not fettered, but the court ordinarily grants leave if that will not cause injustice to the opponent, since it is ordinarily not desirable to compel a claimant to litigate."

[53] However r 50 is not couched in terms requiring the applicant to seek leave to withdraw an application for a protection order. Even if a court had a narrow implied power to prevent a withdrawal, which is not genuinely made, that would not provide a basis to imply a power so broad as to equate to an unfettered discretion whether or not to grant leave. The latter discretion only arises by reason of a legislative requirement, not present here, to seek leave. In Boal Quay v Kings Lynn Conservancy Board [1971] 1 WLR 1558; [1971] 3 All ER 597 it was relevantly observed by Salmon LJ:

"Whenever an application is made to a tribunal or to the courts for that matter, as a rule, there is nothing to compel you to go on with it. You are entitled to withdraw your application at any stage. ... It is quite true that the legislature sometimes, for policy reasons, lays down that an application made under a statute cannot be withdrawn in specified circumstances. ... But quite independently of authority it seems to me to follow on principle that in the absence of a statutory prohibition, once you have made an application you can always withdraw it; and once you have withdrawn the application, it ceases to exist."[13]

[54] In Schipp v Herfords Pty Ltd[14] Samuels JA, with whom Reynolds JA agreed, said of the above reference by Salmon LJ that, while obiter, it correctly sets out the true position.[15] In Schipp Mahoney JA observed:

"I must myself confess to feeling, uninstructed by authority, that in many cases injustice may well be done if a person in the position of a plaintiff can proceed to the point of judgment and then, having decided that he may fail, or having been told that he is about to fail, withdraw his proceeding as of right. However, "intuitive feelings for justice" have been said to be "a poor substitute for a rule antecedently known, more particularly where all do not have the same intuitions"; and the right of a person in the position of a plaintiff so to withdraw is, it has been said, based upon authorities dating back to the time of Coke."[16]

[55] In dismissing what her Honour incorrectly characterised as an "application" to withdraw her Honour held:

"[A] court may dismiss an application to withdraw and should do so where to do otherwise would result in injustice to the respondent. In the circumstances of this case, I find that to allow the applicant to withdraw her application at this stage of the proceedings would be unjust to the respondent, and I dismiss the application to withdraw."

[56] For the above reasons r 50 did not confer an unfettered discretion upon the presiding Magistrate to permit or prevent the applicant to withdraw her application. There was no cause for concern here that the applicant's withdrawal was anything other than voluntary. It was the court's response which wrongly turned the attempted oral withdrawal into an "application". The proper construction of the applicant's counsel's oral submission on 15 October 2015 is to regard it as an oral withdrawal during a proceeding in a DFVP court within the meaning of r 50. What followed ought be regarded as a nullity because the application, having been withdrawn, should have been regarded as no longer being before the court.

[57] Even if I am wrong and if the learned presiding Magistrate did have an unfettered discretion whether to permit or prevent the withdrawal by reference to whether injustice would be caused to the respondent, her Honour nonetheless erred in not permitting the withdrawal. The only basis advanced for there being any "injustice" to the respondent was that the respondent would, in consequence of the withdrawal being allowed, be deprived of a then non-existent right to seek costs. What was urged on and accepted by the court as a means of preventing injustice was really just a construct designed to avoid the orthodox application of s 157.

[58] It is unnecessary to consider whether the position might be different in the extreme example posited in submissions, of a withdrawal being attempted during a hearing, prior to the Magistrate's decision. That was not the situation below. The listed hearing was still 12 days away when the applicant attempted to withdraw her application.

[59] What followed after the refusal of the withdrawal only serves to confirm the nature of the error. On an occasion when the hearing was not listed to proceed the applicant was given no practical choice other than to acquiesce to a hearing on the papers of an application which she no longer sought the granting of. That contorted course was undertaken solely to afford the second respondent an opportunity to pursue a costs order against the applicant. The taking of such a course demonstrates that in truth the "injustice" which the refusal of the withdrawal served to prevent was the correct application of s 157(1) and its requirement that the second respondent would have to bear his own costs.

[60] For the above reasons the application for a declaration must succeed.

[61] The appropriate and simplest course is to declare the application was withdrawn on 15 October 2015 and set aside the orders made then and subsequently.

[62] As to costs, s 49(4) of the Judicial Review Act provides the rules of court apply to this proceeding. The general rule, in r 681(1) Uniform Civil Procedure Rules, is that costs are in the discretion of the court but follow the event unless the court orders otherwise. It is difficult to imagine, particularly given the course urged by the second respondent below, that costs should not follow the event. However the parties should be heard on the issue, unless they agree as to costs.

[63] My orders are:

1. It is declared the applicant's application for a protection order was withdrawn on 15 October 2015.
2. All orders of the Magistrates Court made in this matter on 15 October 2015 and subsequently are set aside.
3. Failing notice in writing by 4 pm on 29 March 2016 to the Registrar by the parties to the effect they have agreed as to costs, I will hear the parties as to costs at 10 am on 1 April 2016.

[1] No appearance was entered for the first respondent (there was evidence of service). The court was advised by an email from Crown Law after my decision was reserved advising, as had in any event been inferred at the hearing, that Crown Law, acting on the first respondent's behalf, took the conventional position of abiding the order of the court.

[2] Knight v FP Special Assets Ltd (1992) 178 CLR 178, 182; Amos v Monsour Legal Costs Pty Ltd [2007] QCA 235; [2008] 1 Qd R 304, 314.

[3] The transcript records the presiding Magistrate identified the review mention date as being 13 October 2015 but a document provided to the parties listing the directions given on the day the directions were given recorded that date as being 15 October 2015.

[4] It was said by the second respondent's counsel that a copy of his outline was emailed to opposing counsel's instructing solicitor (who it transpires was away) at the same time as he had emailed it to her Honour. It is unclear whether the applicant's representatives had consented to this ex parte communication with the court on a matter of substance without first seeing it.

[5] In contrast to some other correspondence that was endorsed "without prejudice, save as to costs".

[6] A term defined in s 3 as meaning, inter alia, a decision.

[7] (2002) 209 CLR 478.

[9] Cf Stubberfield v Webster [1995] QSC 182; [1996] 2 Qd R 211 where the merits had not been fully argued.

[10] R v Jell, ex parte Attorney-General [1991] 1 Qd R 48.

[11] [2010] QCA 283, [25].

[12] [1977] 1 WLR 876, 879.

[14] [1975] 1 NSWLR 412.