RJL v MCP [2025] QDC 117

RJL v MCP [2025] QDC 117 | Case summary | Zoe

[64]

[24] A person who is aggrieved by a decision to make a domestic violence order may appeal against that decision: s 164(a) of the Domestic and Family Violence Protection Act 2012. A "domestic violence order" is defined to encompass a protection order: ss 5 and 23(2) and the schedule of the Domestic and Family Violence Protection Act 2012.
[25] The Commissioner of Police must be served with the appeal and has a right to appear and be heard: ss 165 and 167 of the Domestic and Family Violence Protection Act 2012. In this case, the Respondent's Amended Outline of Argument filed 25 July 2025 states that RJL has provided no evidence that she served the Police Commissioner or the Magistrates Court of Queensland - Kingaroy Registry with a copy of the Notice of Appeal. The relevance of the submission about service on the Magistrates Court is not apparent. As for service of the Police Commissioner, on my review of the file, it is evident that the Police Commissioner is aware of the appeal and does not wish to appear or be heard.
[26] The appeal is to be decided on the evidence and proceedings before the Magistrates Court below, unless the appellate Court makes an order to the contrary: s 168 of the Domestic and Family Violence Protection Act 2012.
[27] I recognise that it has been said that the legislation is far from clear in its identification of the nature of the appeal: DU v Jackson (DCJ) [2024] QCA 122, [74]. In my view, the nature of this appeal is a rehearing on the record: ss 168 and 142(2) of the Domestic and Family Violence Protection Act 2012 and rr 783, 785 and 765 of the Uniform Civil Procedure Rules 1999 (Qld). In this respect, I agree with the analyses of his Honour Judge McGill in GKE v EUT [2014] QDC 248 at [1] - [3], His Honour Judge Horneman-Wren QC in ACP v McAuliffe [2017] QDC 294 at [5] - [12] and His Honour Judge Moynihan KC in HBY v WBI & Anor [2020] QDC 81 at [16] - [18].
[28] If I am wrong about that, it is of no consequence in the determination of this appeal. That is because, whether this is an appeal in the strict sense or an appeal by way of rehearing:

[68]

[32] Care must be exercised to identify the character of the judicial determination that is under consideration in the appeal. There is no one rule for all issues in all appeals under the Domestic and Family Violence Protection Act 2012: OMD v Queensland Police Service & Anor [2021] QDC 282, [27].
[33] While s 37(1) of the Domestic and Family Violence Protection Act 2012 confers a discretion on the Court to make a protection order, a decision to make a protection order should not be treated as a discretionary judgment in all respects.
[34] Section 37(1) of the Domestic and Family Violence Protection Act 2012 provides three threshold conditions that must be satisfied before the discretion will arise. The matters in ss 37(1)(a) and (b) of the Domestic and Family Violence Protection Act 2012 articulate a fixed rule for application to the facts. As such, the principles in House v The King about discretionary errors do not apply to an appeal in respect of a Magistrate's conclusion on either of those threshold conditions.
[35] In contrast, s 37(1)(c) of the Domestic and Family Violence Protection Act 2012 calls for the formation of an opinion about whether, on the facts proved, a protection order is necessary or desirable to protect the aggrieved. This gives rise to a discretionary decision because the assessment of what is necessary to protect the aggrieved is one that calls for formation of an opinion based on a value judgment. That threshold condition, and the exercise of the ultimate discretion to make a protection order, are each discretionary decisions to which the principles in House v The King apply: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518; OMD v Queensland Police Service & Anor [2021] QDC 282, [27]-[31].
[36] The Court may confirm or vary the decision the subject of the appeal or may set the decision aside and either substitute another decision or remit the matter to the court below: s 169(1) of the Domestic and Family Violence Protection Act 2012. The decision of this Court is final and conclusive: s 169(2) of Domestic and Family Violence Protection Act 2012.

[164]

[114] RJL takes issue with the learned Magistrate's reliance on the evidence of NM and EN.
[115] NM is a pathology collector working for Sullivan & Nicolaides. He met RJL in that role when she attended at Belmont Private Hospital. He gave evidence about several discussions with RJL while she was a patient at Belmont Private Hospital. One of the conversations occurred while NM was collecting pathology samples from RJL, and it was recorded by NM without her knowledge. NM exhibits the recording to his affidavit. It is apparent from NM's affidavit that he has no personal knowledge of the nature of the relationship between RJL and MCP. His affidavit in large measure recounts things that he says he was told by RJL at a time when he was providing professional services to her at Belmont Private Hospital. NM attests to his belief about whether the things he was told were true. NM also expresses an opinion about the character of MCP, which is based on interactions NM had when he engaged MCP as his lawyer.
[116] EN is a member of a charitable organisation that was established to provide help to the homeless and needy. He met RJL at an event organised by the charitable organisation and subsequently spoke to her on other occasions as part of the work of the organisation. It is apparent from EN's affidavit that he has no personal knowledge of the nature of the relationship between RJL and MCP. EN simply recounts various things that he was told by RJL about MCP. He attests to contacting MCP, at a time when he did not otherwise know him, to tell him about the allegations that RJL had made about MCP. Following that initial contact, EN became friends with MCP and has engaged him for assistance with legal matters of his own.
[117] The affidavits of NM and EN were witnessed by MCP. NM and EN each gave evidence at the hearing and attested to the truth of the contents of their affidavit.
[118] RJL contends that the learned Magistrate erred in relying on the evidence given by NM and EN as their evidence was inadmissible because it violated confidentiality laws and privacy laws. In addition, RJL contends that NM and EN had no personal knowledge of the relationship and, as such, their evidence was irrelevant.
[119] As I have already mentioned, a court hearing an application for a protection order is not bound by the rules of evidence. That said, I accept that care needed to be taken before placing weight on the evidence of NM and EN having regard to the matters raised by RJL, some of which have been raised for the first time in this appeal. RJL's submission about the relevance of the evidence has particular force.
[120] With those matters in mind, I turn to consider whether there is a demonstrated error.
[121] The learned Magistrate's ex tempore reasons for judgment refer to the evidence of NM and EN. It seems to me that this involved the learned Magistrate summarising the evidence advanced by MCP. It did not involve findings that the evidence was accepted or relied on.
[122] The only finding made by the learned Magistrate about the evidence is that "the preponderance of the witnesses is such that it favours the respondent". The learned Magistrate did not identify which witnesses he regarded to be witnesses whose evidence favoured the respondent. It seems to me that the learned Magistrate's summary of the evidence of NM and EN is not one that could be fairly described as a summary of evidence favouring the respondent. The summary of the evidence of NM and EN is, at best, equivocal.
[123] In the circumstances, I am not satisfied that the alleged error has been demonstrated.
[124] Even if there was a relevant error in this respect, it is immaterial to the outcome for the reasons explained below.

[199]

[139] The second category of evidence relied on by RJL is witness testimonies and police reports confirming cohabitation. I accept that there is a body of evidence that demonstrates that during the relevant period, RJL was, for intermittent periods, residing at MCP's home.
[140] The third aspect of the evidence relied on by RJL are emails in which MCP begs RJL to come home and other emails and messages that RJL says demonstrate a personal relationship beyond a professional context.
[141] There are many documents in the evidence provided by RJL that demonstrate a relationship that is more than the purely professional relationship claimed by MCP.
[142] One example is a recording relied on by RJL in which there is a conversation between MCP and RJL at a location that appears to be MCP's bedroom. MCP can be heard telling RJL to get ready to go to dinner with him or sit in the backyard with the door locked. RJL asked what she was supposed to do and MCP responded that she should "sit and eat food and talk with people and drink and pretend you are okay just like I do". RJL then refers to herself as MCP's "spaz girlfriend" and that maybe MCP should just leave her there on the street. MCP responds to say that he would like her to come along. RJL responds about sitting there trying not to look like a "spaz". MCP responds that RJL could "sit there quietly and say nothing and then you can't be a spaz". MCP becomes increasingly frustrated and yells at RJL to get up and threatens to drag her out in the backyard if she does not hurry up. He expresses frustration at RJL, says that he can't keep dealing with this, and says "I will really start fucking smashing shit - I can't deal with this". In the recording, RJL appears to be making statements to try and goad MCP into accepting certain things about their relationship status and about his ownership of guns.
[143] Another example is a video file named IMG-0888-1. It contains a recorded conversation between MCP and RJL, in which MCP talks about knowing RJL for eight months and not liking her because he knows her too well. It is reasonable to infer from the footage in combination with other evidence that I accept that the video is taken at a location that is MCP's house. In the recording, MCP acknowledges that RJL is present at that location because she has a head injury. MCP says that he has to keep thinking about why it is that he keeps dedicating his time, money and resources to RJL. MCP says to RJL that it is like she is his retarded child or something. He says that he does not know what it is. MCP says, "we don't have sex, we don't have a relationship, you don't love me but you say it all the time". MCP describes RJL as anomaly and says he could not describe their relationship to anyone. He says the fact is that after lashing out the night before and losing control, pushing RJL against the bed and RJL falling and cracking her head, MCP is terrified for her safety and for his and that of his son. On the recording, MCP also says that he is concerned for his reputation.
[144] This evidence is consistent with the existence of a relationship that cannot be correctly characterised as a purely professional relationship between solicitor and client.
[145] The fourth aspect of the evidence relied on by RJL is a decision of Magistrate Sinclair delivered on 22 November 2024. RJL submits that in his decision, Magistrate Sinclair determined that there had been an exchange of gifts between RJL and MCP that were personal and were made in the context of a relationship.
[146] The judgment relates to an application for summary judgment in respect of a claim brought by the incorporated law practice with which MCP is associated against RJL. The essence of the claim is that the law practice seeks payment for legal services that it provided to RJL. In the alternative, the application sought to have RJL's defence struck out.
[147] Relevantly, Magistrate Sinclair says:

[226]

[161] I do not cavil with the experience of the learned Magistrate and the regard in which he is held, but I do not accept that such matters are relevant to whether there should be an award of costs. That MCP seeks to advance such matters is reflective of the general lack of judgment that he has displayed throughout this appeal.
[162] Although the learned Magistrate was prepared to determine the matter on the papers, RJL was entitled to a hearing during which she could cross-examine the witnesses called by MCP. In my view, MCP's cross-examination raised legitimate matters for consideration, including the credibility and reliability of MCP's evidence.
[163] I do not accept MCP's submission that the learned Magistrate was extremely generous in not making adverse finding against RJL regarding her reliability as a witness and the credibility of the evidence she presented. It is clear from the learned Magistrate's reasons, the transcript of the hearing and the audio recording of the hearing that the learned Magistrate was concerned about RJL's reliability. The learned Magistrate made relevant findings in that regard. It is equally apparent that, in the face of repeated and persistent urging by MCP's representative, the learned Magistrate was not persuaded to make adverse findings about RJL's credibility. That is unsurprising given the learned Magistrate accepted her version of the events depicted in the video recording marked IMG-0237.
[164] In the circumstances, MCP's submission does not persuade me that it is appropriate to order costs on an indemnity basis.
[165] Further, and in any event, there is no evidence of any relevant costs incurred by MCP at the time that I listed the matter for hearing on the papers. As is apparent from the history of the appeal outlined above, MCP was self-represented until 24 July 2025. It was after this time that he engaged the law firm where he works to prepare the Amended Outline of Argument.
[166] That begs the question: is appropriate to exercise the discretion to award indemnity costs having regard to MCP's Amended Outline of Argument?
[167] With respect to the issue of costs, MCP's Amended Outline of Argument says:

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