Yeuell v Yeuell
[2025] QDC 164
•25 September 2025 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
Yeuell v Yeuell [2025] QDC 164
PARTIES:
BEN ANTHONY YEUELL
(Appellant)
v
ELISSA YEUELL
(Respondent)
FILE NO/S:
24/25
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Richlands
DELIVERED ON:
25 September 2025 (ex tempore)
DELIVERED AT:
Beenleigh
HEARING DATE:
25 September 2025
JUDGE:
Porter KC DCJ
ORDER:
1. THE APPEAL IS DISMISSED.
2. NO ORDER AS TO COSTS.
3. PURSUANT TO S. 159(2) OF THE ACT, INFORMATION ABOUT THESE REASONS AND JUDGMENT MAY BE PUBLISHED AND S. 159(1) DOES NOT APPLY TO THESE REASONS AND JUDGMENT.
COUNSEL:
The appellant appeared in person
R. Ellery for the respondent
SOLICITORS:
Australian Law Group for the respondent
Summary
This is an appeal of the award of costs against the appellant by the learned Magistrate on the dismissal of the appellant’s application for a protection order for non-appearance. For the reasons which follow, while the costs order was made in error, the appeal fails because there was no right of appeal against the costs order alone.
The proceedings below
On 16 December 2024, the appellant filed an application for a protection order in the Richlands Magistrates Court. On 19 December 2024 a temporary protection order was issued against the respondent in accordance with sections 36 and 44 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).
On 20 February 2025 the appellant and respondent appeared for mention at the Richlands Magistrates Court whereby directions for the proceedings were issued as follows:
(a)The appellant file their material before 14 March 2025;
(b)The respondent file their material before 11 March 2025;
(c)There would be a review of the matter on 17 April 2025; and
(d)The matter was set down for trial on 23 April 2025.
I have before me the appearance record from the learned Magistrate on that date which indicates that, consistent with the appellant’s concession, the appellant was present and represented by the duty lawyer on the 20th of February 2025.
The matter came on for review, in accordance with the 20 February directions on 17 April 2025. The appellant appeared in person as did Mr Ellery for the respondent. At that time, it was confirmed the matter was set down for trial on 23 April 2025. That was a Wednesday. The record notes the adjournment of the matter to 23 April 2025 at 9.00am. I do not have a transcript indicating that his Honour said that, although I infer he did so.
The matter was then called on for hearing on the 23rd of April 2025 at 9.32am. The appellant was not present, although he had complied with the order to file material a little more than a month prior. The learned Magistrate instructed the Court Services Officer to page the appellant. The appellant still did not appear.
The respondent’s solicitors immediately sought dismissal of the application. The respondent’s solicitor did not identify the section upon which dismissal was sought. Notwithstanding, his Honour dismissed the application without further reasons. He made that order at 9.36 am, four minutes after the matter was called on.
His Honour did not identify the basis upon which he dismissed the application. His Honour should have done so, in my respectful view. Reasons are, amongst other things, intended to facilitate appeals. They are also intended to communicate to a party the basis for being unsuccessful.
If his Honour had identified the basis upon which the order was made, it would have avoided the need for this court to attempt to draw an inference as to why the orders were made. It would also have had the added advantage of focusing attention on the basis of the dismissal. If that had occurred, it might also have avoided the error his Honour fell into in awarding costs, as I will explain.
In the absence of reasons from his Honour, the respondent’s solicitor invited this court to infer that his Honour dismissed the application under section 38 of the Act. That section provides:
38Hearing of application—appearance of respondent
(1)This section applies if a respondent appears before the court that is to hear and decide an application for a protection order.
(2)The court may—
(a) hear and decide the application; or
(b) adjourn the application, whether or not it makes a temporary protection order under division 2; or
(c) subject to subsection (3), dismiss the application without deciding it.
(3)The court may dismiss an application without deciding it only if—
(a)the applicant has not appeared; and
(b)if the applicant is a police officer—no other police officer or service legal officer has requested an adjournment; and
(c)no other person eligible to apply for the protection order has appeared.
(4)The dismissal of an application does not affect the right of the applicant to make a further application against the respondent.
Section 38 applied to the situation before his Honour as the respondent appeared before the court, consistent with the requirements of subsection (1).
His Honour then seems to have applied section 38(2)(c) read with section 38(3). Relevantly, these subsections provide that the court may dismiss the application without deciding it, if and only if the applicant has not appeared. It is not in dispute that the applicant did not appear. Accordingly, the discretion under ss. 38(2)(c) and (3)(a) arose.
There are no reasons which identify why the learned Magistrate exercised the discretion which arises under s. 38(2) to dismiss the application under s. 38(2)(c) rather than to adopt one of the other options. It is also not evident from the transcript that his Honour turned his mind to that discretion. I respectfully infer that he did not. That was an error. It was not merely a formal one. By providing the three alternatives, Parliament clearly evinces an intention that the court should pause and consider those alternatives before dismissing an application for non-appearance. There are good policy reasons why Parliament might have made that provision. It might be thought this case is a good example of the kind of situation where the court might consider other alternatives than instant dismissal, as I suggest in paragraph [16] below.
I stop at this point to observe that while the applicant did not appear, the explanation he gave in his notice of appeal was that he made a mistake and had erroneously assumed the hearing would be on a Thursday as other appearances had been.
It may have been a misunderstanding as to the process on an appeal, but he did not swear to the truth of those matters. However, he did tender an email from the day after the hearing sent at 9.06am in which he recites that there was a mix‑up and he had arrived the next day ready to proceed. Mr Ellery, for the respondent, rightly did not object to me receiving that email on appeal. The appellant disclosed that he had received a response in which he was told, in effect, the matter would not be relisted. I accept the appellant’s explanation for his non-appearance.
If his Honour had been addressed on the discretion arising under s. 38(2), attention might have been directed to the appellant’s compliance with the directions and to the fact recorded on the file that the appellant had appeared just six days before, evincing an intention to appear. That might then have caused his Honour to consider adjourning under 38(2)(b), if only for a few minutes, to have either Mr Ellery or the court ring the appellant to make sure that there was not a misunderstanding or misfortune explaining his failure to appear.
However, no attention was turned to the discretion and the matter was dismissed, peremptorily and in error as his Honour failed to consider the discretion conferred by s. 38(2) and/or failed to give adequate reasons for that exercise of discretion.
There is no appeal from the dismissal of the application itself, however, the above analysis informs the appeal from the costs order.
Appeal of the costs order
Following dismissal below, the respondent sought costs of the application. The respondent’s solicitor stated the basis of the application was that the application was frivolous. His Honour agreed and awarded costs of $1,500.
There is no inherent or implied power to award costs, at least where Parliament has made some provision for them in a statute applicable to the proceedings.[1] Section 157 of the Act provides:
157 Costs
[1] Re Ansett Australia Holdings Limited [1998] 1 Qd R 116 at 122-123. Whether there is no such power at all does not have to be dealt with here.
(1)Each party to a proceeding for an application under this Act must bear the party’s own costs for the proceeding.
(2)However, the court may award costs against the party who made the application if the court hears the application and decides—
(a) to dismiss the application and, in doing so, also decides that the party, in making the application, intentionally engaged in behaviour, or continued a pattern of behaviour, towards the respondent to the application that is domestic violence; or
Note—
This type of behaviour is known as systems abuse or legal abuse. It is behaviour in which a person intentionally misuses the legal system, including, for example, by starting court proceedings based on false allegations against another person, as a way to intentionally exert control or dominance over the other person or to torment, intimidate or harass the other person.
(b) to dismiss the application on the grounds that it is malicious, deliberately false, frivolous or vexatious.
(3)In this section—
party includes an aggrieved.
This is the only source of power to award costs in civil proceedings relating to protection orders that I located.
The solicitor’s submission to his Honour presumably was intended to engage section 157(2)(b) of the Act. However, his Honour’s reasons on costs recognise that the application was dismissed because of the non-appearance:
There is not – there is not – as I said, the matter has been dismissed as there is no appearance by the applicant for trial. It is not immediately clear from the applicant’s affidavit that he filed, what the act of domestic violence, it is alleged, is, but there seems to be a lot of complaining about proceedings at QCAT, and there is, subsequently, an application that is before the District Court in respect of estate proceedings.
But it seems the basis of the application is something to do with “blatant control of not supplying our requests”, whatever that is supposed to mean, I am not sure – and allegations of affidavit material filed in the District Court for lies while the respondent – either way, none of it – none of it constitutes an act of domestic violence against the applicant and, certainly, an act of domestic violence cannot be proven against or – an order made against – in respect of a person who is dead. So it does seem to me that the application is frivolous, so I order that the – make an order for costs in favour of the applicant – in favour of the respondent, I should say, in the sum of $1,500. I order the applicant pay those costs, and they will be referred to SPER.
If, as I find occurred, the application was dismissed without deciding it under section 38(2)(c), then by definition the court has not decided the application and, therefore, cannot have decided to dismiss it on the ground that it was frivolous. Further, the application was dismissed for non-appearance. Accordingly, the statutory precondition for the making of the costs order under section 157(2)(c) was not met and no power to award costs arose. The above summary demonstrates two matters:
(a)First, his Honour had power to dismiss the application without deciding it because the appellant did not appear at the trial; and
(b)Second, that his Honour did not have power to award costs against the appellant in those circumstances.
Is there a right of appeal?
Ordinarily, these conclusions would demonstrate error in the decision to award costs against the appellant. There is, however, a problem. There is no implied or inherent right to appeal. Rights to appeal are statutory only.[2] Further, the scope and nature of an appeal depends on the proper construction of the statute conferring that jurisdiction.[3]
[2] Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 at 128 [2]. See also, Bond J, ‘Everything you wanted to know about civil appeals (but were afraid to ask)’ (Speech, Bar Association of Queensland, 12 June 2023) at [4]-[5].
[3] Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 at 128 [2]. See also, Elliott v The Queen (2007) 234 CLR 38 at 42-43 [7].
Appeals are regulated by section 164 of the Act:
164Who may appeal
A person who is aggrieved by any of the following decisions of a court may appeal against the decision—
(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.
The only provision which colourably provides a basis to appeal which covers dismissal under section 38(2)(c) is section 164(c).
The respondent submits that this provision properly construed does not apply where an application is dismissed under section 38(3). Mr Ellery submits that when a court dismisses an application without deciding it, it cannot be characterised as having made a “decision to refuse to make a protection order.” He submits that where a court does not decide an application it has made no decision on the application, so it has not made a decision to refuse to make the protection order. That submission can sit comfortably with the language of sections 38(3) and 164, but is it the correct construction?
There is authority in this court which supports Mr Ellery’s argument. In XNR v AMF [2022] QDC 197, Judge Allen KC agrees in that submission at paragraphs [17] to [19]. In considering that authority, I am conscious of the importance of principles of judicial comity, especially where a Judge in this court has decided a matter on the proper construction of a statute. That is particularly so where the question is one of a constructional choice.[4] The importance of comity principles is particularly important where no appeal lies from this court in civil domestic violence appeals.[5]
[4]Vukolic v Browning [2022] QDC 279 at [117]-[123]; [142]-[150].
[5] Section 164 of the Act.
However, that conclusion was based on a common position advanced by both counsel and accepted by his Honour. In those circumstances, some attention may be given to whether that decision ought to be followed.
Let us look first at the alternative argument. It could be argued that while under s. 38(3) the court dismissed the appeal without deciding it, the substantive effect of dismissal under s. 38(3) was that the Court did make a decision, being a decision to dismiss the application (albeit without deciding it). Further the result of that decision was, in substance, a refusal to make a protection order in the sense that no protection order was made because of the decision to dismiss.
The choice between the two constructions is not an easy one. I accept that read literally, the language of s. 38(3) tends to support the respondent’s submission. On the other hand, the alternative construction would avoid the conclusion that a party in the appellant’s position was left without a right of appeal in respect of a decision which had a material impact on his application and in respect of costs.
One consequence of the narrow construction advanced by the respondent is that an erroneous order for costs under section 157 cannot be appealed. That is because the right to appeal a costs order can only arise as an incidence of a substantive right to appeal the order to which it relates.
So much must be true for two reasons:
(a)First, there is no express power in the statute to appeal the costs order; and
(b)Second, in my view, the right to appeal a substantive order under section 157 includes the right to appeal all incidental and ancillary orders made to it which arise from the substantive order.[6] That includes costs orders. However, where there is no substantive decision to refuse to make a protection order, the costs order made is not incidental to any substantive order which could be appealed, and therefore the costs cannot be appealed.
[6] There is a strong analogy in this respect with the basis upon which a costs order may be appealed under section 222 of the Justices Act 1886 (Qld): see Schneider v Curtis [1967] Qd R 300.
The practical result, therefore, is that the broader construction of section 38(3) and 164(c) which facilitates an appeal would seem desirable. However, in my respectful view, the statute cannot be construed in the broader manner which would favour The appellant’s right to appeal from the order under section 38(3). There are three reasons.
First, it is evident in my respectful view that Parliament was concerned to confine appeals in the civil domestic violence system. That can be seen in the conclusive provisions for appeals under 164 and from the clear language confining appeals to final orders or, exceptionally, temporary protection orders. That Parliament would wish to limit appeals is a policy judgment balancing simplification of civil processes with substantive rights to appeal. That intention must be respected.
Second, as I have said, the narrow construction is supported by the text of the two provisions. Indeed, the language “dismissed without deciding” appears to be drafted to ensure that the order does not comprise “a decision” for the purposes of s. 164(a) to (d).
Third, section 38(4) provides, “[t]he dismissal of an application does not affect the right of the applicant to make a further application against the respondent.” There is no doubt under the statute that without section 38(3) a party would be able to bring a further application on new evidence. What then is the purpose of section 38(4). In my view, its purpose is to confirm that dismissal under 38(3) does not preclude, as a matter of strict law, a further application on the same or similar grounds.[7] The provision seems calculated to ameliorate the effect of a summary dismissal for failure to appear, while at the same time providing a quick and easy dismissal when no appearance occurs.
[7] A second application on the same or similar grounds would arguably be an abuse of process absent some statutory intervention, even if it did not give rise to a judgment estoppel: see the analogous position for successive interlocutory applications in Heritage Bank Limited v Gleeson (No. 3) QDC 217 at [47]-[66] and the cases cited there.
Fourth, ss. 38(2)(c) and (3) provide, in effect, a procedure analogous to dismissal for want of prosecution. Ordinarily want of prosecution is a difficult basis to obtain a dismissal of a proceeding. Section 38 (2)(c), (3) and (4) read together seem to indicate an intention to facilitate peremptory dismissal with a quid pro quo to the further application which can be brought if the applicant, having failed to appear, is still determined to pursue the proceedings. This is not to say that a further application might not of itself be an abuse of process in proper circumstances, however, any such submission by a respondent would have to grapple with the provision in s. 38(4) contemplating a further application. It may well be that on such an application an explanation for the failure to appear would be important.
Having said all that, the result is that the appellant does not have any right to appeal his Honour’s orders. The appeal must be dismissed.
Where does that leave the costs order?
This Court’s task in dealing with that matter has been assisted by the proper concession by Mr Ellery for the respondents that the order was made without jurisdiction. I think that concession was correctly made.
While this Court does not have power to hear an appeal of the costs order, that is not the end of the matter. In my view, the costs order was made without jurisdiction. This Court does not have power to review the costs order for jurisdictional error, although such review might be open under part 4 of the Judicial Review Act 1991 (Qld) on application to the Supreme Court. Given Mr Ellery’s concession, it seems unlikely that will need to be done.
Finally, the lack of an appeal for orders under 38(2)(c) and (3) highlights the increased importance that Judges making orders under that section pay careful attention to the statutory language and expressly address the discretion that arises under s. 38 and consider the limits that an order under that section imposes on making costs orders.
I only add these observations as an aide‑memoire for the appellant. There was a submission before his Honour that the application was in substance an abuse of process because by it the appellant seeks to agitate family disputes about events leading up to his father’s death including in the conduct of the estate thereafter.
Several of the matters raised by the appellant could not possibly attract the domestic violence regime. It appears that the appellant is in a relevant relationship with the respondent, but it also appears to me that the domestic violence regime is not one likely to respond on its proper construction to the kinds of complaints that he, and I infer other members of his family, wish to advance.
While the appellant could bring a further application on the same grounds, he ought to think very carefully about whether that is legally defensible and whether it is a wise course for dealing with the grief and grievances that he and his family have.
Costs
The respondent seeks the costs of the appeal. He makes some good points in relation to the matters that were agitated outside the issues of the appeal being complaints of elder abuse, fraud and misconduct in respect of the estate. I accept that the appellant and his family feel strongly about this, but that does not justify making irrelevant allegations, especially allegations of criminality.
On the other hand, one consequence of this appeal is that the costs orders that were made against the appellant by his Honour are unlawful. Further, no offer to concede that was made until this hearing. There has been, in that sense, success on both sides.
I am also conscious that a further costs order may lead to more points of dispute. If I thought a costs order should, in any event be made, I would do so. I note, however, that the appellant has indicated he does not intend to pursue further domestic violence proceedings, and to focus his attention on proceedings in respect of the estate to the extent they exist.
I am not going to treat that as an undertaking, first, because I do not have any power to accept it and second, because it would be unfair to treat such a statement from the Bar table as an undertaking from a litigant in person where it could lead to contempt proceedings however, the appellant seems to be a sensible person who does not wish to conduct himself improperly.
For those reasons I make no order as to costs.
Finally, I make an order excluding the application of s. 159(1) of the Act. Strictly speaking, it might be questioned if that section applies to appeals, though that construction is consistent with the spirit of the confidentiality provisions. However, they are presumably directed at protecting the identify of persons who are victims of domestic violence and other named persons. There is nothing in this judgment which in my view attracts that policy.
0
5
0