OMD v Porter - [2025] QSC 146

SUPREME COURT OF QUEENSLAND

CITATION:

OMD v Porter [2025] QSC 146

PARTIES:

OMD

(applicant)

v
JUDGE BERNARD PORTER

(first respondent)
and

COMMISSIONER OF QUEENSLAND POLICE SERVICE

(second respondent)

FILE NO/S:

BS 15750 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

28 January 2025; Further submissions dated 3 March 2025

JUDGE:

Kelly J

ORDER:

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

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – GENERALLY – where the applicant’s originating application was referred to the Court under r 15 of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant seeks leave to issue an originating application for judicial review of the decision of the first respondent, seeking relief in the nature of certiorari and/or a declaration – where two previous applications by the applicant under r 15 have been dismissed – where the decisions in respect of the first and second applications were interlocutory decisions – whether the originating application is different in material respects to the first and second applications – whether it is in the interests of justice that the originating application be considered and decided on its merits – whether the originating application is vexatious, frivolous or an abuse of process – whether the registrar should be directed to issue the originating application

Domestic Violence and Family Protection Act 2012 (Qld), s 168, s 169(2)
Judicial Review Act 1991 (Qld), s 43, s 46
Uniform Civil Procedure Rules 1999 (Qld), r 15

Bajramovic v Calubaquib (2015) 71 MVR 15; [2015] NSWCA 139, cited
DU v Jackson (DCJ) [2024] QCA 122, considered
DU v Jackson (DCJ) [2023] QSC 185, cited
McEwan v Merrin (Magistrate) & Ors [2023] QSC 6, cited
OMD v Queensland Police Service & Anor [2021] QDC 282, related

Rolleston Coal Holdings Pty Ltd v ICRA Rolleston Pty Ltd [2020] QSC 331, cited

COUNSEL:

The applicant appeared on their own behalf
No appearance for the first respondent

M O Plunkett for the second respondent

SOLICITORS:

The applicant appeared on their own behalf
No appearance for the first respondent
QPS Legal Services for the second respondent

This is a referral to the Court by the registrar under r 15 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). The applicant seeks leave to file an originating process being an application for review. The proposed…

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.

Continue reading OMD v Porter

Details

AGLC: OMD v Porter [2025] QSC 146
Case: [2025] QSC 146
Decision Date: 20 June 2025

CaseChat Overview and Summary

In the case of OMD v Porter, the applicant, OMD, sought leave to issue an originating application for judicial review of a decision made by the first respondent, who was a District Court judge. The decision in question related to an appeal by OMD against a protection order granted by a Magistrate under the Domestic Violence and Family Protection Act 2012 (Qld). The application for leave to issue the originating process was made under rule 15 of the Uniform Civil Procedure Rules 1999 (Qld) and was referred to the Court by the registrar. The applicant's previous two applications under rule 15 had been dismissed, and this application was considered to determine if it was in the interests of justice to allow it to proceed and if it was vexatious, frivolous, or an abuse of process.

The central legal issues before the Court were whether the proposed originating application was materially different from the previous applications and, if so, whether it should be allowed to proceed on its merits. The Court also considered whether the application was vexatious, frivolous, or an abuse of process. The applicant argued that the first respondent had failed to conduct a real review of the evidence presented during the hearing before the Magistrate and that this constituted a jurisdictional error. The Court noted that while there was no right of appeal from the first respondent's decision under the Domestic Violence and Family Protection Act, the Supreme Court has a supervisory jurisdiction that could be exercised to address jurisdictional errors.

The Court found that the proposed application was materially different from the previous applications as it sought a narrower remedy, specifically an order in the nature of certiorari or a declaration that the first respondent's decision was made in jurisdictional error. The Court also concluded that it was in the interests of justice for the application to be considered on its merits. However, the Court directed that the application be stayed until the applicant amended it to seek only the specified relief and on the specified grounds. The Court further directed that the registrar should issue the proposed application under these conditions.

In conclusion, the Court allowed the application to proceed, subject to the conditions outlined above, and directed the registrar to issue the originating process. This decision provided a pathway for the applicant to seek judicial review of the District Court judge's decision on the specific grounds of jurisdictional error related to the review of the evidence presented during the hearing before the Magistrate.

Orders

Orders of the court

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

Background

Background to the litigation

This is a referral to the Court by the registrar under r 15 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). The applicant seeks leave to file an originating process being an application for review. The proposed application is described as made pursuant to s 43 of the Judicial Review Act 1991 (Qld) (“the JR Act”) and concerns the first respondent’s decision dated 2 December 2021 which dismissed the applicant’s appeal from a Magistrate’s decision to grant a protection order under the Domestic Violence and Family Protection Act 2012 (Qld) (“the DV Act”). Relevantly, the proposed application seeks, inter alia, an order in the nature of certiorari setting aside the first respondent’s decision or, alternatively, a declaration that the decision was not lawfully made. The second respondent, although not served with the proceeding, appeared on the application. Background to the application under r 15 On 5 August 2019, an application for a protection order under the DV Act was filed by the Commissioner of Police against the applicant. On 7 August 2019, a temporary protection order was made against the applicant in favour of her former husband, with their two children as named persons. At the time of that order, the applicant and her ex-husband had been separated for some years. On 16 December 2019, there was a hearing before the Magistrate on an application under the DV Act for a protection order against the applicant in favour of her ex-husband. At the end of that day, the application was adjourned part-heard. Some eleven months later, on 16 November 2020, the hearing resumed and was completed. On 13 January 2021, the Magistrate granted the application for a protection order. The two, now adult, children were named persons under that order. The applicant appealed to the District Court and sought to set aside the Magistrate’s order. On 19 August 2021, the appeal was heard by the first respondent. On 2 December 2021, the first respondent made a minor adjustment to the terms of the protection order and otherwise dismissed the appeal. The appeal before the first respondent was an appeal under s 168 of the DV Act. Section 168 of the DV Act relevantly provides, in respect of such an appeal:“(1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed. (2) However, the appellate court may order that the appeal be heard afresh, in whole or part.” Section 169 of the DV Act sets out the powers of the appellate court in deciding the appeal which powers included confirming, varying or setting aside the decision. Section 169(2) of the DV Act materially provides that the decision of the appellate court upon such an appeal “shall be final and conclusive”. On this application, it was uncontroversial, that by reason of s 169(2), there was no right of appeal from the first respondent’s decision to this Court. However, the absence of a statutory right of appeal does not mean that the first respondent’s decision is immune from any further legal challenge. In DU v Jackson(DCJ),[1] Bond JA observed:“In the present case the District Court judge’s jurisdiction to exercise judicial power was conferred on him by Division 5 of Part 5 of the Domestic and Family Violence Protection Act 2012. It is settled law that the Supreme Court has a supervisory jurisdiction which is the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court, and which it is beyond the power of the State legislature to exclude. If the District Court judge was mistaken or had disregarded the nature or limits of his functions or powers on the appeal before him, then he would have made a jurisdictional error. A person aggrieved of that error could obtain an appropriate remedy from the Supreme Court in the exercise of its supervisory jurisdiction.”[1][2024] QCA 122 at [5].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	OMD v Porter [2025] QSC 146
PARTIES:	OMD (applicant) v JUDGE BERNARD PORTER (first respondent) and COMMISSIONER OF QUEENSLAND POLICE SERVICE (second respondent)
FILE NO/S:	BS 15750 of 2024
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 June 2025
DELIVERED AT:	Brisbane
HEARING DATE:	28 January 2025; Further submissions dated 3 March 2025
JUDGE:	Kelly J
ORDER:	The registrar is directed to issue the proposed application being the document marked exhibit A to CFI 3, on the condition that the resulting proceeding is stayed until the applicant amends the application so that she seeks only an order in the nature of certiorari and/or a declaration on the ground that the first respondent committed jurisdictional error by failing to conduct a real review of the Magistrates Court hearing and reasons so as to form his own view of the evidence comprising the cross-examination of witnesses on the first day of that hearing.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – GENERALLY – where the applicant’s originating application was referred to the Court under r 15 of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant seeks leave to issue an originating application for judicial review of the decision of the first respondent, seeking relief in the nature of certiorari and/or a declaration – where two previous applications by the applicant under r 15 have been dismissed – where the decisions in respect of the first and second applications were interlocutory decisions – whether the originating application is different in material respects to the first and second applications – whether it is in the interests of justice that the originating application be considered and decided on its merits – whether the originating application is vexatious, frivolous or an abuse of process – whether the registrar should be directed to issue the originating application Domestic Violence and Family Protection Act 2012 (Qld), s 168, s 169(2) Judicial Review Act 1991 (Qld), s 43, s 46 Uniform Civil Procedure Rules 1999 (Qld), r 15 Bajramovic v Calubaquib (2015) 71 MVR 15; [2015] NSWCA 139, cited DU v Jackson (DCJ) [2024] QCA 122, considered DU v Jackson (DCJ) [2023] QSC 185, cited McEwan v Merrin (Magistrate) & Ors [2023] QSC 6, cited OMD v Queensland Police Service & Anor [2021] QDC 282, related Rolleston Coal Holdings Pty Ltd v ICRA Rolleston Pty Ltd [2020] QSC 331, cited
COUNSEL:	The applicant appeared on their own behalf No appearance for the first respondent M O Plunkett for the second respondent
SOLICITORS:	The applicant appeared on their own behalf No appearance for the first respondent QPS Legal Services for the second respondent