FEATURE ARTICLE -
Advocacy, Issue 99: March 2025
A Closer Look at DU v Jackson (DCJ) [2024] QCA 122
This case considers the conduct of appeals under s168 of the Domestic and Family Violence Protection Act 2012 (Qld) (“DFVPA”) and the potential for jurisdictional error in the District Court’s approach to such appeals. Here, the Queensland Court of Appeal (comprised of Bond JA and Dalton JJA, with Williams J dissenting) allowed the appellant to apply to the Supreme Court to review a District Court decision on the basis that the District Court likely misapprehended its function in hearing the appeal, leading to jurisdictional error. The Court of Appeal also considers the distinction between final and interlocutory orders and overrules the construction of r 765 by Chesterman J in De Innocentis v Brisbane City Council and followed by McMurdo P in Kambarbakis v G & L Scaffold Contracting P/L.
By way of background, the appellant, DU, and his one-time girlfriend, TG, sought protection orders against each other. A Magistrate made a protection order in favour of TG and dismissed DU’s application. DU appealed this decision to the District Court under s164 of the DFVPA. The District Court dismissed DU’s appeal against the protection order made against him but allowed his appeal against the Magistrate’s failure to issue a protection order against TG. The District Court remitted this issue to a different Magistrate (though at the time of the Court of Appeal hearing, the remitted matter had been heard but no decision had been given).
DU filed an application for leave to appeal from the District Court’s decision. A Judge of the Court of Appeal struck out the application on the basis that there was no right to appeal from a District Court decision on appeal from a Magistrate, as s169(2) of the DFVPA provides that the District Court’s decision is “final and conclusive.” Consequently, DU sought judicial review of the District Court’s decision. A Supreme Court Registrar referred the application to a judge under r15 of the UCPR, considering it to be an abuse of process. DU sought leave for the Registrar to issue the judicial review application, but Martin SJA refused to grant leave. DU appealed that decision.
The Court of Appeal first addressed whether the decision by Martin SJA to refuse leave to issue the judicial review application was interlocutory in nature. In considering the distinction between final and interlocutory orders, Bond JA agreed with Dalton JJA that the construction of r765 UCPR by Chesterman J in De Innocentis v Brisbane City Council and followed by McMurdo P in Kambarbakis v G & L Scaffold Contracting P/L was wrong and that the language of r765 does not justify the conclusion that previous High Court authority on the distinction was no longer applicable. It was found that the decision of Martin SJA in the present appeal was not a final decision and as a result, the Court applied r765(2) UCPR i.e. the appeal was an appeal in the strict sense:
A Different Test for r 765(2)?
[36] In the matter of De Innocentis v Brisbane City Council the Full Court considered r 765(2) and the meaning of the words “a final decision in a proceeding”. In that case, a decision had been made in the trial division of the Supreme Court refusing to join a party to an extant proceeding because the joinder application was outside the time limited by the Limitations Act (r 69(1)(b)(i) of the UCPR). The same question arose as arises in this case, whether the appeal was an appeal stricto sensu,or by way of rehearing. Chesterman J said:
“[32] Rule 765 provides that:
‘(1) An appeal to the Court of Appeal under this chapter is an appeal by way of rehearing.
(2) However, an appeal from a decision, other than a final decision in a proceeding, or about the amount of damages or compensation awarded by a court is brought by way of an appeal.
(3) …’
In a case such as the present one, whether the discretion is to be exercised in accordance with rule 69 or the former O 3 r 10 is not likely to be important. I would, however, think that the appeal is from a final decision in a proceeding so that it is a rehearing.
[33] There was some debate as to whether the judgment appealed from, which dismissed the appellant’s claim against the Council leaving his action against the second defendant to proceed, should be categorised as final or interlocutory. It was said to be interlocutory in form but final in effect. The distinction has been productive of confusion and no entirely satisfactory test has evolved to determine into which category a judgment should be placed.
[34] The wording of r 765 must have been chosen deliberately to avoid the necessity of resolving such fine points. It uses the term ‘final decision’ and not ‘final judgment’. The draftsman cannot have been ignorant of the wealth of learning that has been built up with respect to what are ‘final judgments’. The new rule has been so expressed as to make that knowledge obsolete. One looks only to see whether an appeal is brought from something which answers the description ‘final decision in a proceeding’. ‘Decision’ has a wider connotation than ‘judgment’. There is no doubt the chamber judge made a decision. He struck out the appellant’s claim against the Council. This is final in the sense that it brought that claim to an end. The decision precludes further controversy on all questions involved in that claim. No further decision with respect to the claim is necessary or possible. The decision is therefore final. …”
[37] Against the history just outlined, the remarks at [34] of the above quotation are extraordinary. So far as I can ascertain, they have only been referred to twice.
[38] About 10 months after the decision in De Innocentis, in Kitto v Medalion Homes Ltd (in liq),a question about the interpretation of r 766 arose. Davies JA, with whom Thomas JA and Mullins J agreed, said, “Whatever effect De Innocentis’ decision has had, it does not seem to me to affect the application of the decisions to which I have just referred of the High Court to the question of what is a final judgment which is the term used in rule 766(2)”. The decisions to which Davies JA had referred were Hall and Carr.
[39] In Kambarbakis v G & L Scaffold Contracting P/L McMurdo P, dissented. One of the points on which she differed from the other members of the Court was that she thought that the judgment in De Innocentis should be followed on the point now under consideration. She said:
“Rule 744 UCPR defines ‘decision’ as used in r 765 as ‘an order, judgment, verdict or an assessment of damages’. In De Innocentis v Brisbane City Council, Chesterman J, with whom Pincus JA and Thomas JA agreed, noted that the use in r 765 of the term ‘final decision’ rather than ‘final judgment’ is significant; ‘final decision’ is a broader concept than that encompassed by ‘final judgment’. Although the primary judge’s decision was interlocutory in the sense discussed by Holmes JA, its practical effect was to end Mr Kambarbakis’s chance of success in any claim he might commence against the respondent. The respondent’s limitation defence would necessarily defeat any claim Mr Kambarbakis might bring. Holmes JA has persuasively demonstrated the argument to the contrary, but I consider the better interpretation of r 765(2) is that ‘a final decision in a proceeding’ includes a decision by a Supreme Court judge refusing an application to extend a limitation period: cf De Innocentis v Brisbane City Council. …” – [4].
[40] Holmes JA took the opposite view, in accordance with established authority. She said:
“Although, as was pointed out by Chesterman J and accepted by the other members of this Court in De Innocentis v Brisbane City Council, the expression ‘final decision’ is broader than ‘final judgment’ with which earlier case law was concerned, I would, nonetheless, regard a refusal of an extension of the limitation period as not being a ‘final decision in the proceedings’. As was observed in Meddings v Council of the City of Gold Coast, there is nothing to prevent an unsuccessful applicant from continuing with his or her action, although he or she will be met with an unanswerable defence, or from bringing another such application in the proceedings, unlikely though it would be to succeed. The appeal is, therefore, to be distinguished from that available under r 765(1); it is in the nature of an appeal stricto sensu.” – [31].
[41] Muir JA did not express an opinion on this issue, as, in his opinion, whether the appeal was by way of rehearing, or an appeal in the strict sense, the result was the same.
[42] With all due respect, the part of the decision in De Innocentis contained at [34] of the above quotation is plainly wrong and should not be followed. That the word “decision” is used in r 765(2), rather than “judgment” or “order” can have no logical bearing upon whether the traditional test applies under that rule. So much was said by Holmes JA in Kambarbakis. A review of the language in the cases which I have outlined above shows the word “order” or “judgment” is used interchangeably; the rule is the same whichever is being spoken about. As has been remarked by Gibbs CJ and by McPherson J (underlined passages at [27] and [32] above), if the traditional test is abandoned, it does not lead to a clearer or more logically satisfying result. To the contrary, it leads to undesirable unpredictability, for the answer to the question in each case rests not on principle, but upon the subjective assessment of the particular judicial officer as to whether or not an order is, in its practical effect, final.
The Decision of Martin SJA is Interlocutory
[43] Applying the traditional test, the decision of Martin SJA refusing to direct the Registrar to issue the proceeding which DU had filed was interlocutory in its nature. Unless overturned on appeal, the decision finally determined that DU could not proceed with his proposed application to judicially review the decision of the first respondent. However, it did not finally determine whether or not there was a possible basis for such a judicial review. Nor did it determine the underlying issue between the parties: whether a protection order under the Domestic Violence Act ought to have been made against DU. After considering the reasons for judgment of Martin SJA, it would have been perfectly possible for DU to have filed another application asking for a r 15 direction; he may have had different grounds than those dealt with by Martin SJA. Also, DU could have filed another proceeding for judicial review of the first respondent’s decision by way of Originating Application. While that too may have been subject to the r 15 process, if the proceeding which DU wished the Registrar to issue was different in a material respect from the one dealt with by Martin SJA, the outcome of that process would not necessarily be the same.
[44] In fact, in a neat illustration of this point, by the time the appellant argued the case before this Court, he had thought of an additional basis for his claim to review the first respondent’s judgment. He raised it orally on appeal for the first time, which has given rise to some procedural delays. However, as it happens, I think the new point is a good one, see below. Rather than raise the point on this appeal, the appellant might have proceeded in either of the ways suggested at [43], essentially bringing a new application in the trial division.
[45] Because the decision of Martin SJA was interlocutory, r 765(2) means that the appeal before this Court is an appeal stricto sensu, or an appeal in the strict sense, unless this Court decides that the justice of the case requires that there should be an appeal by way of rehearing – r 765(4). In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd Mason J explained that an appeal in the strict sense is one which considers whether the judgment below was right when given, on the material which the lower court had before it. In contrast, an appeal by way of rehearing involves the Court having power to grant leave to a party to adduce new and fresh evidence. Furthermore, an appeal on rehearing involves the rights of the parties being determined by reference to the law as it exists at the time of the appeal, rather than at the time of the first instance hearing. Both an appeal in the strict sense and an appeal by way of rehearing are dependent on the identification of error in the decision below. In both types of appeal the appellate court reconsiders the conclusions of fact reached by the Court below.
Significantly, DU’s appeal before the Court of Appeal introduced a new legal argument in oral submissions that had not been raised below. The argument was that in hearing the appellant’s appeal from the police protection order made by the Magistrate, the District Court had treated the Magistrate’s findings of fact and decisions about the evidence, as if the Magistrate were a jury, whereas it ought to have conducted an appeal by way of rehearing involving a review of the evidence before the Magistrate.
Even though the new argument (the only viable ground of appeal) was raised for the first time in oral submissions before the Court of Appeal, the Court accepted consideration of this new argument:
Procedural Matters
[68] The new ground advanced by the appellant might be a basis for seeking an order in the nature of certiorari – s 41(2) Judicial Review Act, although it will raise the vexed question as to whether or not (in Queensland) reasons for decision form part of the “record”. That this question is unclear would not be a sufficient basis to refuse to issue proceedings pursuant to r 15. In any event, the Supreme Court has a supervisory jurisdiction over courts of inferior jurisdiction. This means that it is open to the appellant to seek a declaration from this Court that the first respondent’s orders were made without jurisdiction, in addition to, or as an alternative to, an order in the nature of certiorari.
[69] The new ground involves only a question of law and it was apparent on the material which was before Martin SJA. It was not a point which the appellant agitated before Martin SJA, but it was like those points he did agitate, in that it depended upon an assertion of jurisdictional error, and in that it would be the basis for a proceeding for an order in the nature of certiorari, or a declaration. As well as that, the point is a fundamental one, going to the validity of the judgment of the first respondent and one which is of some general application and importance. For all these reasons, I think it is right that this Court consider the point on appeal even though it was not raised below.
Ultimately, the Court of Appeal considered it likely that the District Court had regarded the Magistrate like a jury, in the sense that he simply looked to see whether or not the findings made by the Magistrate were open on the evidence and had not conducted a real review and come to conclusions of his own:
Misconception of Statutory Function by First Respondent
…
[86] The first observation I would make is that an appellate court can only be convinced that a finding of fact is wrong if it undertakes an analysis and evaluation of the evidence and contentions in relation to the disputed factual finding. That caution might be needed in reversing such a finding does not mean that the only task of a court on rehearing is to check whether or not there was evidence which was capable of supporting the finding below. In any event, the law in relation to the role of an appellate court has developed since Edwards v Noble. Indeed in Fox v Percy (above), McHugh J expressed the view that the dicta from Edwards v Noble was never correct. He said, “In earlier cases, Barwick CJ and Windeyer J had suggested that the findings of trial judges were entitled to special deference, even when the findings were based on inferences drawn from facts found or admitted. Warren denied that proposition.” McHugh J was the only judge in Fox v Percy to mention Edwards v Noble.
[87] The second respondent also referred to a decision of this Court in McDonald v Queensland Police Service, another judgment which was referred to in the footnotes to that part of the first respondent’s judgment dealing with his role on appeal. McDonald dealt with another case on appeal from the District Court at Southport. One of the points on appeal was very like the one raised here; it was contended that the District Court Judge had not conducted an appeal by way of rehearing. The Court of Appeal said in McDonald:
“[47] However, in this case, the District Court judge did conduct the appeal appropriately, in accordance with law, by way of a rehearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing. It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.
[48] It is clear, particularly from [14]-[18] of the decision below, that the District Court judge reviewed the evidence that was before the Magistrate, and formed his own view of it, leading to the conclusion that, in the challenged respects, he could see no basis to overturn the Magistrate’s factual findings – that is, could see no error in those factual findings, which would warrant allowing the appeal.” (my underlining).
[88] The respondent referred to the District Court decision from which the appeal in McDonald was brought to say that the language used by the District Court Judge in that case was similar to that used by the first respondent. The District Court Judge in McDonald said at one point in his reasons, “it was open to the learned Magistrate to accept” a particular witness’s evidence. That expression does rather indicate that the District Court Judge in McDonald had not formed a view on the evidence himself, and no doubt it was a reason for the point taken on appeal in that case. However, in McDonald the language referenced is at the end of a series of four paragraphs where it is made clear that the District Court Judge did evaluate the conflicting evidence for himself by reference to the contested points – [14]-[18].
[89] Here, that sort of evaluation is not apparent in the reasons of the first respondent. Further, as set out above, from the statements made by the first respondent, and from the substance of his reasons, it seems likely that he regarded the Magistrate like a jury, in the sense that he simply looked to see whether or not the findings made by the Magistrate were open on the evidence. It seems likely that the first respondent did not conduct a real review and come to conclusions of his own. There is certainly an arguable case that the first respondent mistook his task on appeal sufficient to justify the commencement of proceedings under r 15.
The Court of Appeal concluded that a failure by the District Court to review the Magistrate’s hearing and reasons and form its own conclusions of the parts of the evidence which were contentious on appeal, would amount to jurisdictional error:
Jurisdictional Error
[90] In my view, whether the first respondent was conducting an appeal by way of rehearing, or an appeal in the strict sense, a failure to conduct a real review of the Magistrate’s hearing and reasons, and to form his own view of the parts of the evidence which were contentious on appeal, would amount to jurisdictional error. The right to appeal is a creature of statute. By s 169(1) of the Domestic Violence Act, the first respondent had a statutory power to make orders which altered the legal rights of the parties to an appeal, but only after a hearing in accordance with s 168 of the Domestic Violence Act. The error which the appellant wishes to assert is an error within the traditional definition of jurisdictional error, to quote Jagot J in Stanley v DPP (NSW):
“… Accordingly, an ‘inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’. The second kind of jurisdictional error (misapprehending or disregarding the nature or limits of functions or powers) was described as including: (a) disregarding or considering some matter if the statute conferring jurisdiction requires that particular matter to ‘be taken into account or ignored as a pre‑condition of the existence of any authority to make an order’; and/or (b) misconstruing the statute conferring jurisdiction so as to misconceive the nature of the function being performed.” (footnotes omitted).
Given that the error was purely legal in nature and would have significant consequences, the Court allowed the judicial review application. The Court directed that the Registrar issue the judicial review application and made further directions to ensure that the appellant did not proceed with litigation that was not viable.
A link to the full decision may be found here.
