1. The application for leave to appeal is allowed.
2. The application to adduce fresh evidence on appeal is dismissed.
3. The appeal is allowed and the orders below (except for the costs orders) are set aside.
4. 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.
5. 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
DU v Jackson (DCJ) [2024] QCA 122
Case
[2024] QCA 122
Decision Date
CaseChat Overview and Summary
The matter in DU v Jackson (DCJ) involved an appellant appealing a decision by a District Court Judge (DCJ) to dismiss his appeal against a protection order made against him in the Magistrates Court. The appellant sought leave for judicial review of the DCJ's decision, arguing that the DCJ acted in bad faith and erred in law. The Supreme Court Registrar referred the judicial review application to a Judge under rule 15 of the Uniform Civil Procedure Rules 1999 (Qld), but the judge below refused leave to issue the originating application.
The court was required to determine several legal issues, including whether the decision below was a decision other than a final decision in a proceeding, whether the court should exercise its discretion to hear the appeal by way of rehearing to allow the appellant to introduce fresh evidence, and whether the fresh evidence would probably have an important influence on the result of the appeal. Additionally, the court had to consider whether the application for judicial review which the appellant sought to have the Registry issue disclosed a reasonable cause of action, and whether the Court should consider a new point on appeal that was raised for the first time.
The court concluded that the decision below was not a final decision in a proceeding and that the Court was hearing an appeal in the strict sense, rather than an appeal by way of rehearing. The court found that the application for judicial review disclosed a reasonable cause of action, and that the fresh evidence would not probably have an important influence on the result of the appeal. The court also considered the new point on appeal raised for the first time, finding that it involved only a question of law and was apparent on the material before the judge below. The court found that the appellant demonstrated an arguable case that the DCJ did not conduct a real review of the evidence and did not form his own view of it, and that this was a jurisdictional error.
The court allowed the application for leave to appeal, dismissed the application to adduce fresh evidence on appeal, and allowed the appeal. The court set aside the orders below (except for the costs orders) and directed 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 DCJ misapprehended his function in hearing the appeal made in relation to the police protection order against him, or a declaration based on that ground. The court made no order as to costs of the appeal.
Orders
Orders of the court
1. The application for leave to appeal is allowed.
2. The application to adduce fresh evidence on appeal is dismissed.
3. The appeal is allowed and the orders below (except for the costs orders) are set aside.
4. 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.
5. No order as to costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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.[27]Section 151, Domestic Violence Act.[28]Coles Group Ltd v Costin [2015] QCA 140, [25]. 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.[29](1984) 157 CLR 124, [6], Gibbs CJ. 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).[30][2023] QSC 6, [9]–[10].
Decision
Reasons for decision
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 Ltd[16] 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].[16][2009] SASC 77; (2009) 224 FLR 348. 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.”[17][1994] 2 VR 290, 296-297.