DGC v Commissioner of Police & Anor [2026] QDC 100

DISTRICT COURT OF QUEENSLAND CITATION: DGC v Commissioner of Police & Anor [2026] QDC 100 PARTIES: DGC (Appellant) v QUEENSLAND POLICE SERVICE (First Respondent) and AHN (Second Respondent) FILE NO/S: BD 3540/25; MAG-00080082/19(3) DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Caboolture DELIVERED ON: 21 July 2026 DELIVERED AT: Brisbane HEARING DATE: 5 and 12 June 2026 JUDGE: Judge Porter KC ORDER: 1. The appeal is allowed. 2. The variation order made 18 September 2025 be set aside. 3. The variation application dated 10 March 2023 is dismissed. 4. There be no order as to costs. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the matter was listed for mention – where the Respondent was told the incorrect date of the mention – where the Respondent failed to appear – where the learned Magistrate made final orders in the absence of the Respondent in the nature of a default judgment – where the learned Magistrate varied a protection order in the absence of the Respondent – whether there has been a denial of natural justice – where the Magistrates Court has no power to make final -- 1 of 22 -- 2 orders on a protection or variation application in default of appearance without considering the merits of the application APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – whether the appeal is an appeal by way of rehearing – where a variation to a protection order was made – where the Magistrates Court did not consider the evidence or make findings as required by the Act – where the Magistrates Court did not give reasons for making the variation order – where the variation order had been previously set aside on appeal to the District Court – where the Magistrate did not consider the reasons on the previous appeal COURTS AND JUDGES – PRECEDENTS – GENERALLY – GENERAL PRINCIPLES – where doctrine of precedent applies to Magistrates Court hearing protection and variation applications – where Magistrates Courts must follow decisions of the District Court when hearing protection and variation applications CASES: ACP v McAulliffe [2017] QDC 294 BJR v BF [2025] QDC 131 Browning v Australian and New Zealand Banking Group Ltd [2014] QCA 43 Cusak v De Angelis [2008] 1 Qd R 344 DMO v RPD [2009] QDC 92 DU v Judge Jackson KC (2024) 20 QR 255 EW v RW (2024) 4 QDCR 237 Favelle Mort Ltd v Murray (1976) 133 CLR 580 FLC v MRT [2021] QDC 264 Fox v Percy (2003) 214 CLR 118 GKE v EUT [2014] QDC 248 HBY v WBI [2020] QDC 81 LBM v ELO [2025] QDC 103 Lipohar v The Queen (1999) 200 CLR 485 LKL v BSL [2015] QDC 337 MMHS v Commissioner of Police [2026] QDC 49 OMD v District Court of Queensland [2026] QCA 91 OMD v Porter [2025] QSC 146 OMD v Queensland Police Service & Anor [2021] QDC 282 RIS v DOL & Anor [2021] QDC 154 Salari v Oliva [2025] QDC 26 SK (a child) v Commissioner of Police (2023) 3 QDCR 92 SNW v TRD (2023) 3 QDCR 187 South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 Viro v The Queen (1978) 141 CLR 88 Vukolic v Browning [2022] QDC 279 LEGISLATION: Domestic and Family Violence Protection Act 2012 ss. 37(1), 88, 157A, 164, 165, 168, 187 -- 2 of 22 -- 3 Judicial Review Act 1991 s. 43 Justices Act 1886 s. 222 Uniform Civil Procedure Rules 1999 (Qld), rr. 290, 667 SOLICITORS: Appellant appeared in person. S. Ong, QPS Legal Services on behalf of the Respondent. Summary [1] On 18 September 2025, the learned Magistrate varied a protection order made 18 July 2019 naming AHN as aggrieved and DGC as respondent, adding the couple’s daughter (BRS) as a named person and adding strict orders relating to contact, approaching AHN or attempting to locate her. The orders applied to several named children including BRS. [2] The orders were made in the appellant’s absence and on a date on which the variation application had been listed for mention. The orders were made without consideration of the merits and without reasons. [3] The Commissioner of Police rightly conceded that this appeal must be allowed, and the variation order made on 18 September 2025 (the Variation Order) must be set aside. On 12 June 2026, after the Commissioner considered his position on further orders, he did not press for the application for the Variation Order to be referred back for rehearing. I considered that was a correct decision on the material before me. Accordingly, I made orders upholding the appeal, setting aside the Variation Order and dismissing the variation application. I informed the parties that I would deliver my reasons later. These are the reasons for those orders. [4] This Court has made clear on several occasions that making a protection order or variation order when an application has been listed for mention only will be a substantial breach of procedural fairness. It has also made clear on numerous occasions that there is no power to make a “default” protection order or variation order. The Magistrate must consider the evidence and give proper reasons if such an order is to be made. The hearing in this case miscarried on both grounds. The facts Previous orders [5] On 18 July 2019, a protection order was made in the Magistrates Court in Caboolture in favour of AHN and her two children against DGC as respondent requiring DGC not to commit domestic violence against AHN and not to expose the children to domestic violence (the 2019 Order). [6] On 10 March 2023, Constable Voigt applied to vary the 2019 Order (the Variation Application). Constable Voigt sought, in broad terms, a no approach order, a no contact order and a prohibition on trying to locate the aggrieved. The Variation Application sought orders imposing much more extensive limits on DGC than the 2019 Order. The Variation Application also sought to add BRS as a named person. [7] The reasons in the Variation Application relied on information from AHN alleging two acts of domestic violence, one in February and the other on 10 March 2023. Those acts involved, broadly, angry outbursts by DGC and damaging of chattels in the presence of the children, including BRS. -- 3 of 22 -- 4 [8] The Variation Application also sought a temporary order, though it did not expressly state the terms sought. I infer the terms of the order sought in the Variation Application were contemplated for the temporary order sought. [9] Question 7 of the Variation Application asked about details of any other Court orders and disclosed no other such orders, including no Family Court orders. The Variation Application included the following warnings: Notes to the respondent (who is also the respondent named in an existing order) If you do not appear in court, the court may hear and decide the application in your absence. The court may issue a warrant for you to be taken into custody by a police officer and brought before the court if the court believes that it is necessary for you to be heard. [10] Those notes are required by ss. 34(2) and 88(2) Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA or the Act) to be included in applications for protection orders and variation orders respectively. [11] A temporary protection order was made on 16 March 2023 (the Temporary Order) consistent with the Variation Application identifying AHN as the aggrieved and DGC as the respondent. Its terms become relevant later, so I set them out in full: Named Person/s Protected by this Order: CHILD OF THE AGGRIEVED : AMB CHILD OF THE AGGRIEVED : DBX RELATIVE OF THE AGGRIEVED : JLT CHILD OF THE AGGRIEVED : BRS Nationally Recognised DVO It is ordered that: (1) The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved. (2) That the respondent must be of good behaviour towards the named person and must not commit associated domestic violence against the named person and where a child must not expose the child to domestic violence. (3) The respondent is prohibited from entering attempting to enter or approaching to within 50 metres of premises where the aggrieved lives. (4) The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the named person by any means whatsoever including telephone, text or internet. Except when appearing personally before a court or tribunal; Except when attending an agreed conference, counselling, or mediation; Except for the purposes of having contact with children but only as set out in writing between he parties or in compliance with an order of a Cour or when contact authorised by a representative of the Department of Child Safety, Youth and Women with a child. Except communication in writing however only in relation to Parenting issues. Except with prior written consent of the aggrieved including by text message or email. UNLESS OTHERWISE ORDERED THIS ORDER CONTINUES IN FORCE TO AND INCLUDING UNTIL A FURTHER ORDER IS MADE IN THE PRESENCE OF THE RESPONDENT OR THE RESPONDENT IS SERVED WITH OR THE RESPONDENT IS TOLD BY A POLICE OFFICER ABOUT THE EXISTENCE OF SUCH FURTHER ORDER OR THE APPLICATION FOR A PROTECTION ORDER IS WITHDRAWN OR DISMISSED BY THE COURT. [12] The Variation Application was adjourned on a number of occasions and came on for hearing on 29 January 2024. It was then adjourned part heard to 3 June 2024. DGC -- 4 of 22 -- 5 agreed to the balance of the case proceeding without a further oral hearing. The learned Magistrate then made a variation order in terms of the Variation Application on that date (the 2024 Variation). DGC appealed. [13] The parties did not put the submissions, hearing or judgment in the appeal before me. I have accessed the submissions, transcript and reasons and made them exhibits in the appeal. [14] The appeal was heard by his Honour Judge Burnett AM on 10 March 2025. The principal ground of appeal was that DGC had not been aware that proceeding on the papers meant he would not be able to cross examine AHN nor would he be able to have someone else do so. After setting out the discussion between the learned Magistrate and DGC about the effect of proceeding without further hearing, which his Honour thought ambiguous as to DGC’s understanding of the procedural issue, his Honour held: That is the full exchange in relation to matters relevant to the way in which the trial was to proceed. There is nothing in the material to indicate whether his Honour, himself, had a true understanding of what [DGC]’s understanding of “on the papers” actually meant. That is particularly significant in this case, given that the thrust of the appellant’s contention is that on his view of the evidence, the aggrieved had taken up with a new partner, and on his view of the evidence, the aggrieved and the new partner had concocted allegations of domestic violence in order to justify that the orders were sought. That informed the evidence led by police. That is, in my view, a fairly critical thing, because it is relevant not only to the appellant’s rights, but, also, his duties; that is, his right to cross-examine, subject to the protections provided for under the Act. But also, his duty when cross-examining to put his case as such that the magistrate would have been able to assess the evidence of the aggrieved and any other supporting evidence in respect of what would be a critical matter for determination, particularly on the point of credit. There has been some discussion about section 151 and the way in which it ought to be interpreted. And it is not in dispute that the making of an order under section 151(2) in the absence of submissions might result in a denial of procedural fairness. But that is not necessarily the end of it. As his Honour Judge Dearden said in EKL [2020] DCJ 194, the content of the duty to provide procedural fairness depends on the circumstances. His Honour there determined that a failure to comply with section 151(4) was a fundamental error resulting in the appellant being denied a fair hearing. That, in part, requires an examination of the question of whether or not the court may have ordered the respondent will not cross-examine the protected person. There is nothing in the material which, to my mind at least, satisfies me that the court did, in fact, undertake that process. [15] His Honour set aside the 2024 Variation and referred the Variation Application back to the Magistrates Court for hearing. His Honour also reinstated the Temporary Order. The events following the first appeal [16] On 1 May 2025, the Variation Application was listed for mention before the Magistrates Court at Caboolture. Only the Commissioner was present. There was no evidence the aggrieved or the respondent knew of the mention. The learned Magistrate listed it for further mention on 29 May 2025. [17] DGC appeared on 29 May 2025 and the matter was adjourned to 24 July so the lawyer for the Commissioner could obtain and consider the appeal materials. DGC was given -- 5 of 22 -- 6 leave to appear by telephone. The matter came on for mention on 24 July 2025 as directed. [18] The 24 July transcript does not show that DGC was called, much less that he did not answer, although my associate listened to the Court recording and it recorded the sound of the number being rung, ringing, then going to voicemail. (Consistent with that, DGC sent a later email in which he said he missed a call on that day.) [19] The learned Magistrate listed the matter for further mention on 18 September 2025. Importantly, the purpose of the mention was to make directions for the filing and serving of any further material and the setting of a trial date for the rehearing of the Variation Application. The learned Magistrate also required DGC to appear in person. [20] Section 187 DFVPA provides that if a court adjourns the hearing of a variation application and the respondent is not present, the clerk of the court must give written notice of adjournment to the respondent of the adjournment and that if the respondent does not appear, an order may be made in the respondent’s absence or “the court may issue a warrant for the respondent to be taken into custody by a police officer.” [21] A notice of adjournment was provided for the adjournment on 1 May 2025 and the adjournment on 25 May 2025. Those notices were effective. DGC appeared in person on 25 May 2025 and intended to do so on 24 July 2025, though that miscarried when he missed the call made to his number that day. [22] There is a notice of adjournment in the evidence filed in the appeal by the Commissioner which notifies the adjournment from 24 July 2025 to 18 September 2025. The evidence of the source of that document is that it was downloaded from QPrime. There is no evidence of it being actually served on DGC. [23] Notwithstanding that, DGC was conscious he might have missed something on 24 July 2025 because on 5 August 2025 he sent an email to the Caboolture Magistrates Court asking what had passed on that day and explaining he had missed the call. He was informed by email in response on 7 August 2025, inter alia, that the matter had been adjourned to 19 August 2025. That was an error. The mention had been listed for 18 September (18/09 not 19/08. It is easy to see how the mistake might have occurred). [24] Communications that occurred between 7 August and 18 September 2025 are unclear. The evidence is incomplete and hard to reconcile. What is clear is that DGC did not appear on 18 September 2025 but did appear on 19 September 2025, to be told that his matter had been determined. Events on 18 September 2025 [25] The Variation Application came before the learned Magistrate on 18 September 2025. The content of that hearing is material. DGC did not appear. [26] It began with Ms Fletcher, for the Commissioner, informing the learned Magistrate of the successful appeal and that she was seeking directions for the filing and serving of material pending the rehearing of the Variation Application. There was then some discussion about the history of the matter and ultimately the learned Magistrate identified that the matter had last been before the Court on 24 July 2025 and that the Court had required the parties to attend in person at the next mention which was 18 September 2025. -- 6 of 22 -- 7 [27] There was a discussion about whether DGC had been given notice of the adjournment and the learned Magistrate appeared to conclude that a notice of adjournment had been served. No material was read or identified as the basis for that conclusion, so it is unclear to me the basis for it, though it might well be that the learned Magistrate had proper material before him. [28] Ms Fletcher then said that she was “not sure if a final order can be made…I don’t think without him here we can reasonably finalise [the Variation Order]”. The learned Magistrate disagreed. He observed that DGC had failed to appear, had appeared once and not again, and then said he was “going to just give final orders as per the - - -” variation order made in June 2024 which had been overturned on appeal. After discussion of the terms of that order in relation to approaching within 50m the learned Magistrate continued observing: Because I’m quite happy – they fail to appear, we don’t have to rehear it. [29] This comment might have been made in the context of the order by his Honour Judge Burnett AM for the Variation Application to be reheard, but it is not clear. The learned Magistrate went on: So I can just…made a final order… …that was made on the 3rd of the 6th 2024 that had the…two standard conditions, the prohibited from entering or attempting to enter premises, prohibited from contacting, attempting to contact or ask someone else to contact with all the standard exemptions, and it was made up to the 2nd of the 6th ’29. And on our system, it says it’s still current. …So I’m willing to just do that order. [30] Ms Fletcher responded she was happy with that and that that order had been in place for a long time, though that was not really accurate but also irrelevant. Reasons on 18 September 2025 [31] The learned Magistrate’s reasons were as follows: Respondent has failed to appear as directed. Issue final orders – final DV order as per conditions on protection order varied order dated – dated 3.6.24 with – adding – replacing two – the two – replacing the two new – replacing with – yes. It’s replacing. Replacing with the new two standard conditions: condition – I probably should do that from the – I probably shouldn’t go over the – if they’ve already had one in place from ’24 – there hasn’t been any breaches, have there? … Yes. Up to 2.6.29. Yes. So that they can’t argue that they got a 10-year order or a eight-year order. All right. That’s good. That’s done. That’s dusted. [32] It was done and dusted for the day, but not for the parties, nor for this Court. Events following 18 September 2025 [33] On 19 September 2025, DGC attended at the Caboolture Magistrates Court and discovered that the matter had been dealt with in his absence the day before. The same day he sent an email asserting he had been given the wrong date for the hearing and asked to have the matter listed as a matter of urgency for reopening. [34] The registry responded by email later the same day stating that the proceeding had been relisted for 3 October 2025 at 8.30am. This was different from the date notified in a notice of adjournment dated 23 September 2025, which specified the listing as 2 October 2025 at 9.30am. Again, it is not clear that this notice of adjournment was in fact sent to DGC or if it was, that it came to his attention. -- 7 of 22 -- 8 [35] The matter came before the same Magistrate and the same police prosecutor on 2 October 2025. Once again DGC was absent, seemingly because of his reliance on the erroneous email sent on 18 September 2025. The learned Magistrate observed that DGC had not appeared since 3 June 2024.1 That was wrong. (A similar error seemed to be made on the last occasion.) [36] The prosecutor pointed out that her colleague had seen DGC appear on 19 September. On the question of the notice of adjournment, the prosecutor said that DGC had not been served by police but that it had “apparently” been sent though she was “not sure if its’s been sent to him”. [37] The learned Magistrate then referred to DGC’s 18 September 2025 email and observed that DGC was not present on 2 October 2025. However, the learned Magistrate did not note the email from the registry telling DGC that the hearing would be on 3 October 2025 (though to be fair it is not a mistake one would expect to find on the file). [38] The learned Magistrate decided not to give DGC a further chance based on his finding that the notice of adjournment had been sent (despite the prosecutor’s uncertainty about that matter). He did not make any order re-opening the matter. Nature of the appeal [39] In GKE v EUT,2 McGill SC DCJ observed: [1] On 15 March 2013 a protection order was made in the Coolangatta Magistrates Court under the Domestic and Family Violence Protection Act 2012 (“the Act”) s 37, against the appellant for the benefit of the respondent. By this appeal the appellant seeks to have that order set aside. The appellant has a right to appeal against the decision under s 164 of the Act, and the appeal was started within the time specified in s 165. By s 168, unless the appellate court orders that the appeal be heard afresh, “an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.” It appears to follow that, unless there are grounds to order a rehearing de novo, there is no power to admit fresh evidence on the hearing of the appeal. Under s 169, in deciding this appeal I can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court. [2] The first question that arises is as to the nature of the appeal. Section 168 does not make the appeal one by rehearing, and the restriction on the consideration of only the evidence before the court that made the decision under appeal is consistent with the idea that the appeal provided is an appeal in the strict sense. The concept of an appeal being by way of rehearing is well established, and there are number of statutes which provide for such an appeal, so the absence of such a provision from division 5 suggests that what is intended is an appeal in the strict sense. On the other hand, s 142(2)(e) expressly provides that ch 18 of the Uniform Civil Procedure Rules applies to a proceeding under the Act. Chapter 18 is concerned with appeals, and operates only to the extent that the application of the rules is not inconsistent with the Act: s 142(1)(b). [3] Part 3 of Chapter 18 deals with appeals to a court other than the Court of Appeal, and provides in r 783 for appeals to the District Court from the Magistrates Court. Rule 785 provides that the rules in Part 1, dealing with appeals to the Court of Appeal, other than specified rules, apply to such appeals, with necessary changes. Accordingly r 765(1) applies to such an appeal, and that rule provides that an appeal to the Court of Appeal 1 His Honour did not specify the year, but 3 June 2024 was when DGC was before the Magistrates Court for the hearing which led to the first Variation Order which was set aside on appeal. 2 [2014] QDC 248. -- 8 of 22 -- 9 is an appeal by way of rehearing. It follows that, by this somewhat convoluted path, the legislature has provided that the appeal to this Court is an appeal by way of rehearing. That has the consequences which have been laid down by the Court of Appeal. [40] His Honour’s conclusion that the appeal created by s. 168 of the Act is an appeal by way of rehearing has been applied in the District Court since then.3 I could locate no judgment in the District Court which adopts a contrary view, or even doubts his Honour’s analysis; quite the contrary. 4 [41] In DU v Judge Jackson KC,5 Justice Dalton expressed the view that the appeal created by ss. 164 and 168 of the Act might be interpreted as an appeal in the strict sense. However, her Honour did not determine the matter because it had not been argued and the appellant was a self-represented party. If full argument had occurred, one would expect that GKE v EUT and its reasoning would have been considered. So far as I could determine, it was not cited. [42] In OMD v District Court of Queensland,6 the Court of Appeal considered an appeal from an application under s. 43 Judicial Review Act 1991 (Qld) (JRA) brought by OMD to review for jurisdictional error the dismissal of her appeal to the District Court brought under ss. 164 and 168 of the Act. At trial, the Chief Justice noted the comments of Dalton JA in DU, but again considered it was unnecessary to resolve the question of whether the appeal was a strict appeal or appeal by way of rehearing: OMD v Porter.7 Her Honour found that in that case, whether the appeal was by way of rehearing or in the strict sense, what the District Court judge had to do was undertake a real review of the record of the proceedings below and make up his Honour’s own mind about the contested issues raised by the grounds. The primary judge considered that the District Court judge had correctly proceeded on the basis it was a rehearing. In dismissing the appeal, Justice Brown (with whom Justices Boddice and Bradley agreed) also noted the point without deciding it. [43] A finding by a judge of the Supreme Court identifying the nature of the appeal under the Act while exercising supervisory jurisdiction under Part 4 JRA will in my view be binding on this Court, as will a decision of the Court of Appeal. However, neither the Supreme Court nor the Court of Appeal has ruled on the issue. Consistent with the law expressed in Vukolic v Browning,8 I should continue to follow his Honour Judge McGill SC’s decision in GKE unless I think it clearly wrong. That applies a fortiori where the decision has been applied many times. I think the decision is correct. I therefore treat the appeal as an appeal by way of rehearing rather than a strict appeal. Leave to appeal out of time [44] DGC filed a Notice of Appeal using the form for an appeal of a criminal matter under s. 222 Justices Act 1886 (Qld) (Justices Act) on 8 December 2025. He also filed an 3 Casebase on Lexis+ shows over 50 references to the decision with no disapproval indication. I did not check them all. 4 ACP v McAulliffe [2017] QDC 294 at [9] to [12] (Horneman-Wren SC DCJ); OMD v Queensland Police Service & Anor [2021] QDC 282 (Porter KC DCJ); HBY v WBI [2020] QDC 81 at [16] to [18] (Moynihan KC DCJ). 5 (2024) 20 QR 255. 6 [2026] QCA 91. 7 [2025] QSC 146. 8 [2022] QDC 279 at [117] to [123]. -- 9 of 22 -- 10 application for an extension of time to appeal under the Justices Act. Section 165 DVFPA relevantly provides: 165 How to start appeal (1) The appeal is started by filing a notice of appeal with the registrar of the appellate court. … (4) The notice of appeal must be filed within 28 days after— (a) the day on which the decision is made; or (b) if the decision was made in the absence of the appellant, the earlier of the following— the day on which a copy of the decision is served on the appellant; the day on which a police officer tells the appellant about the existence of the decision. (5) The appellate court may at any time extend the period for filing the notice of appeal. (6) The notice of appeal must state fully the grounds of the appeal and the facts relied on. [45] The decision under appeal was made on 18 September 2025, though DGC was vague as to the exact date, specifying 2 October 2025 in his extension application and 9 October 2025 in his Notice of Appeal. While the Notice of Appeal was more than 28 days after each of those dates, it is not clear that DGC needs leave at all. There was no evidence about whether or when a copy of the 18 September 2025 order was served on him or whether or when he was told by a police officer about the existence of the decision. [46] However, in case leave is required, I extend time to appeal to 8 December 2025, the date he filed the Notice of Appeal. Leave should be given because the decision below is affected by fundamental legal errors. The parties’ submissions on the appeal [47] The Notice of Appeal is in the Justices Act form. That is not the correct form for the appeal of a civil order under the DFVPA, though the Commissioner did not take the point. It does reflect, though, a lack of understanding by DGC that proceedings for protection orders are not criminal proceedings nor criminal in nature. In any event, DGC’s Notice of Appeal raises just one ground: lack of procedural fairness. It states: My matter was previously appealed and heard in the District Court. It was sent back to the Mags Court. On two occasions I attended dates I was required to from communication with Caboolture Courthouse (I have evidence). There has been administration errors twice. They gave me incorrect dates and dealt with in my absence. The DV team say they can’t relist my matter, though they gave me incorrect dates to attend twice. [48] DGC’s submissions develop that ground by reference to the material which is included in the affidavit filed helpfully by the Commissioner’s lawyers. He also makes submissions going to the merits of the Variation Application. [49] The Commissioner’s submissions concede the appeal. I discern three principal reasons for that concession: (a) First, the Magistrates Court proceeded in DGC’s absence in circumstances where he had been given conflicting information about when his matter was listed for hearing. The underlying proposition seemed to be that his failure to appear was not shown to be the result of his own fault and the orders could not properly then be made in his absence; -- 10 of 22 -- 11 (b) Second, that the Magistrate erred in making a variation order without considering whether the material before the Court made out the statutory pre- conditions for such an order; and (c) Third, (perhaps) that the Magistrate erred in making final orders when the proceedings had been listed for mention only. [50] The proceedings below were affected by legal error in each of the ways identified by the Commissioner. I explain in detail as follows, in the hope and expectation that the principles articulated are applied both by Magistrates and by parties, particularly the Commissioner’s legal representatives whose involvement is central to the civil domestic violence process operating efficiently and according to law. Failure to consider the merits The authorities [51] His Honour’s comments and reasons demonstrate that he acted on the basis that he could make a variation order in relation to an extant protection order in default of appearance, without considering the statutory criteria for the making of a variation order, without considering the evidence to support the making of the order and without giving reasons for the decision. [52] This Court has made clear on numerous occasions that that is wrong. There is no power under the DFVPA to make a “default” protection order. [53] In SNW v TRD, I said (footnotes omitted):9 [1] On 14 December 2022, the Magistrates Court at Caboolture made a protection order against the appellant. The protection order was made on the terms of an extant temporary protection order for five years. [2] The order was made, relevantly, in the following circumstances. (a) First, the matter had been listed for mention on that date. It was not listed for hearing. The first respondent’s solicitor did not ask the Magistrate to proceed to final orders; (b) Second, the appellant did not appear, and the learned Magistrate had a basis to believe the appellant did not appear because he was in another court dealing with a criminal matter; (c) Third, the learned Magistrate did not appear to have had the appellant called; (d) Fourth, the learned Magistrate made final orders in terms of the temporary protection order without considering any evidence which might have been filed; and (e) Fifth, the learned Magistrate gave no reasons. [3] The orders should not have been made in those circumstances. [4] The first, second and third matters resulted in the hearing of the application being unfair, contrary to the express requirements of rr 22 and 23 Domestic and Family Violence Protection Rules 2014 (“DFVP Rules”), especially r 23(2)(b): (a) If a matter is not listed for a final hearing, a respondent is entitled to act on the basis that no final orders will be made. Of course, a party to an application ought to appear on all mentions of a matter, but that does not mean that if they do not the Court can unilaterally change the nature of the listing. (b) If a party does not appear, but the Court has reason to believe they have been delayed or are taken up in another court, or might be in the courthouse but not in 9 (2023) 3 QDCR 187. -- 11 of 22 -- 12 the Court, the Court must take reasonable steps to give the absent party an opportunity to appear. In this case, the learned Magistrate made final orders at 9:18 am, seven minutes after the matter was called, and without having had the appellant called nor even inquiring with his solicitor, who appeared seemingly with instructions to seek an adjournment of a criminal matter, as to whether her client could appear later in the day. [5] The fourth and fifth matters have the consequence that the orders were affected by legal error. As to these matters, the learned Magistrate appears to have proceeded on the basis that the Court can give “default judgment” on an application for a protection order. That is, where there is default in appearance, the Court has power to make protection orders without any substantive consideration of the merits of the matter and without any reasons being given. That is an incorrect basis to proceed. [6] Perhaps the learned Magistrate had in mind the procedures for entry of default judgment under Ch 9, Pt 1 Uniform Civil Procedure Rules 1999. However, those Rules do apply only to appeals under the Domestic and Family Violence Protection Act 2012 (“DFVPA”). Even if they did, they would not be apt to authorise the making of a protection order without consideration of the merits. In any event, hearings in the Magistrates Court of applications for protection orders are regulated by the DFVP Rules. They make no provision for default orders. [7] By s 37(1) DFVPA, Parliament has identified the circumstances in which a court’s discretion to make a protection order against a person arises. The DFVPA requires the court to be satisfied of the three matters in paras 37(1)(a), (b) and (c). In the absence of express statutory provision for protection orders to be made other than on the merits, there is no power to make a “default” protection order. Protection orders must be made on the merits and must be accompanied by adequate reasons. That remains the position where the respondent does not appear. [8] To avoid doubt, s 39 DFVPA provides no power to make a default order. That provision allows “the court that is to hear and decide an application for a protection order” to hear and decide the application in the absence of the respondent. Hearing the application in the absence of the respondent does not equate to making an order without considering the merits of the application. And in this case, the Court should not have proceeded in the absence of the appellant in any event for the reasons already articulated. The power to hear and determine the matter in the absence of the respondent must be exercised having regard to rr 22 and 23 DFVP Rules and the requirements of natural justice at common law. That power will rarely, if ever, be properly exercised where the application is listed for mention only. [9] This is not the first time that a protection order has been set aside because it was made “in default of appearance” and without consideration of the merits or provision of any reasons. It might be helpful if the magistrates who might be called on to hear applications in this area are reminded that there is no power to make orders in default of appearance without considering the merits of an application for a protection order and giving reasons. [underlining added] [54] This judgment was reported in the Queensland District Court Reports. It was undoubtedly chosen for reporting because it addressed an important point of principle. It was not the first judgment of this Court to state that principle, nor the last, nor the only reported decision on the point. [55] In SK (a child) v Commissioner of Police,10 his Honour Judge Morzone KC stated the principle, where a Magistrate had failed to give reasons addressing the matters in s. 37 of the Act. His Honour Judge Smith AM (as his Honour then was) also stated the principal in EW v RW.11 10 (2023) 3 QDCR 92 at [56] to [58]. 11 (2024) 4 QDCR 237 at [41] to [45]. -- 12 of 22 -- 13 [56] The reported cases are only a small selection of the published cases stating the same principle, reaching back to at least 2009: see DMO v RPD,12 a case approved by LKL v BSL,13 and RIS v DOL & Anor,14 FLC v MRT,15 BJR v BF,16 LBM v ELO,17 and most recently in MMHS v Commissioner of Police.18 There are probably many more. [57] These cases do not always refer to other judgments of the Court reaching the same conclusion. The same conclusion has nonetheless been reached. [58] The circumstances of this case identify a further reason why it must be correct that a protection order application and a variation application can only be determined on the merits. A statutory power to make final orders in default is invariably accompanied by an express power to set aside such orders. Rule 290 is the source of the express power under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). It provides: 290 Setting aside judgment by default and enforcement The court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the court considers appropriate. [59] Further, there is a general power to set aside an order made in the absence of a party. Rule 667(2)(a) UCPR provides: 667 Setting aside … (2) The court may set aside an order at any time if— (a) the order was made in the absence of a party; ... [60] That power has been construed as applying even where the absent party was served.19 That reflects the seriousness with which the law takes an opportunity to be heard. Neither the Act nor the Domestic and Family Violence Protection Rules (the Rules) have such a provision. It is possible that such a power might be implied as part of the power to hear and determine conferred under the Act, at least where service of notice of the hearing has not occurred. There is some analogy in this situation with the situation where a default judgment has been entered without service of the proceedings. There, the object of the judgment is entitled to have the Court set aside the default judgment as of right. No statutory authority is required to do so.20 The analogy is not perfect however, and I express no final view on the matter. [61] The only provision in the Act dealing with orders made in the absence of a respondent is s. 157A(1). It only applies where an application was served under an order for substituted service. The Rules contain no rule which permits re-opening for orders made in default of appearance. Notably, the Rules do contain Part 6, entitled “Ending proceedings early”. That is the heading for the part of the UCPR where default judgment rules appear. There is nothing in Part 6 of the Rules which deals with default or setting aside default orders. 12 [2009] QDC 92 at [5] per McGill SC DCJ. 13 [2015] QDC 337 per Dick SC DCJ. 14 [2021] QDC 154 at [26] per Dearden DCJ. 15 [2021] QDC 264 at [40] to [59] per Porter KC DCJ. 16 [2025] QDC 131 at [19] per Loury KC DCJ. 17 [2025] QDC 103 at [13] per Porter KC DCJ. 18 [2026] QDC 49 at [20] to [23] per Haddrick DCJ. 19 Salari v Oliva [2025] QDC 26 at [26] to [31] considers the cases on the point. 20 Cusak v De Angelis [2008] 1 Qd R 344 at [36]; and Browning v Australian and New Zealand Banking Group Ltd [2014] Q CA 43 at [26] to [28] -- 13 of 22 -- 14 Variation applications must be determined on the merits [62] The same principle applies when the Court is dealing with an application to vary a protection order. [63] The variation of domestic violence orders is dealt with in Division 10 of Part 3 of the Act. Domestic violence order refers to both a temporary protection order and a (final) protection order. This must be kept in mind in construing Division 10. [64] Section 86 identifies the persons who may apply for a variation of the domestic violence order and for the form of the application. Notably it requires the application to state the grounds on which the variation application is made. The variation may relate to a condition of the order, the duration of the order and the persons named in the order. [65] Section 88 deals with service. It relevantly provides: 88 Service of application (1) If the applicant for the variation of the domestic violence order is a person other than the respondent, a police officer must personally serve the copy of the application prepared under section 87(1) or (2)(a) on the respondent. Note— Under section 90 an applicant may ask the court for a hearing before the application is served on the respondent. (2) The copy of the application must state that, if the respondent does not appear in court— (a) the court may hear and decide the application in the respondent’s absence; or (b) the court may issue a warrant for the respondent to be taken into custody by a police officer if the court believes that it is necessary for the respondent to be heard. [66] Sections 88(1) and (2) are materially the same as the service provisions for a protection order in s. 34(1) and (2). [67] Section 91 deals with making a variation order. It provides: 91 When court can vary domestic violence order (1) A court may vary a domestic violence order— (a) on an application to vary it; or (b) on its own initiative under section 42 or 43. (2) Before it varies a domestic violence order, the court must consider— (a) the grounds set out in the application for the protection order; and (b) the findings of the court that made the domestic violence order. (3) Also, before the court varies a domestic violence order— (a) if an intervention order or a diversion order has previously been made against the respondent and the respondent has failed to comply with the order—the court must consider the respondent’s failure to comply with the order; or (b) if an intervention order or a diversion order has previously been made against the respondent and the respondent has complied with the order—the court may consider the respondent’s compliance with the order; or (c) the court may consider the respondent’s criminal history and domestic violence history if, in the court’s opinion, it is relevant to do so. Note— -- 14 of 22 -- 15 The police commissioner is required to ensure a copy of the respondent’s criminal history and domestic violence history is filed in or given to the court. See section 90A. (4) However, the court must not decide to vary a domestic violence order merely because the respondent has complied with an intervention order or a diversion order previously made against the respondent. (5) If the court varies a domestic violence order, the court must make a copy of the domestic violence order that states— (a) the details of the domestic violence order after the variation; and (b) the conditions of the domestic violence order after the variation. (6) The copy of the domestic violence order prepared by the court under subsection (5) is called the varied order. [68] Sections 93 and 94 deal with hearing of the application. They relevantly provide: 93 Hearing 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 variation of a domestic violence 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 the application without deciding it only if— (a) the applicant for the variation is a person other than the respondent; and (b) the applicant has not appeared; and (c) if the applicant is a police officer—no other police officer or service legal officer has requested an adjournment; and (d) no other person eligible to apply for the variation has appeared. (4) The dismissal of an application does not affect the right of the applicant to make a further application against the respondent. 94 Hearing of application—non-appearance of respondent (1) This section applies if a respondent fails to appear before the court that is to hear and decide an application for a variation of a domestic violence order and the court is satisfied that the respondent has been served with a copy of the application. (2) The court may— (a) hear and decide the application in the absence of the respondent; or (b) adjourn the application, whether or not it makes a temporary protection order under division 2; or (c) subject to section 156(1), order the issue of a warrant for the respondent to be taken into custody by a police officer and brought before the court; or (d) if the applicant is the respondent—dismiss the application without deciding it. [69] Those sections are materially the same as ss. 38 and 39 dealing with hearing of protection order applications. [70] The duty of the Court in hearing and determining an application to vary a protection order is the same as that applying on hearing and determining an application for a protection order. A Court must consider the merits of the variation application and give reasons for its decision. That is so for the following reasons. [71] First, s. 91(2) imposes a duty to consider the grounds set out in the variation application as well as the findings of the court which made the protection order. This compels a consideration of the merits of the variation application. -- 15 of 22 -- 16 [72] Second, as with an application for a protection order, the power conferred on the Court in relation to a variation order is to hear and determine. As I have explained in relation to power to make a protection order expressed in the same terms, in the absence of statutory power to make default orders, the duty to hear and determine requires consideration of the merits and reasons for the decision. [73] Third, the express provisions in ss. 93(2)(c) and 94(2)(d) permitting the dismissal of the application without deciding it where the applicant for the variation does not appear, impliedly excludes making orders on the application without deciding it on the merits in other circumstances. [74] Fourth, s. 51(1) provides: 51 Court may make or vary domestic violence order by consent (1) If the parties to a proceeding for a domestic violence order, or a variation of a domestic violence order, consent to the making of the order, or do not oppose the making of the order, the court may make the order— (a) if the court is satisfied that a relevant relationship exists between the aggrieved and the respondent; and (b) without being satisfied as to any matter mentioned in— (i) for a proceeding for a protection order—section 37(1)(b) or (c); or (ii) for a proceeding for a temporary protection order—section 45(1)(b); and (c) whether or not the respondent admits to any or all of the particulars of the application. … [75] The express provision for an order to be made by consent without the Court being satisfied of the identified matters in s. 51(1) impliedly requires the Court to consider the merits of those matters where an order is not made by consent. This applies equally to a consent order for a protection order or variation of a protection order. [76] Fifth, where a variation application seeks additional conditions or to add named persons, the Court must in my view comply with the statutory conditions attached to the making of such orders in the statute. It would be absurd to construe the Act any other way. Most of those conditions are stated as being discretionary, and a discretion cannot be exercised by default. [77] Last, but by no means least, all the observations about the lack of any provision for making final orders in default which apply to protection applications apply equally to variation applications. Conclusion [78] The learned Magistrate decided the variation application without considering the merits of the application. He failed to consider the matters expressly identified in s. 91(2). He also imposed additional conditions provided for in s. 58 of the Act without considering whether it was proper to exercise the discretion to impose those conditions and named a child under Division 4 of Part 3 without considering the factors expressly identified in ss. 52(1) and 53. [79] His Honour also made orders in the form of the 2024 Order without seeking proper information or submissions about the judgment of the District Court which set aside that very order. That was a significant error. If his Honour had read his Honour Judge Burnett AM’s reasons on the appeal, he would have realised that the findings upon which the 2024 Order were based were unable to be sustained on substantial -- 16 of 22 -- 17 procedural fairness grounds. He also neither sought nor obtained any evidence or submissions about other matters which might have changed since the 2024 Order was made including the state of any family law proceedings. Given orders were made in the Family Court in May this year giving custody of BRS to DGC, one might think such an inquiry would have had an impact on whether the variation naming BRS was a proper order to make. Determining a protection order or variation application listed for mention only [80] The summary of the history of the proceeding on its remittal to the Magistrates Court for rehearing set out above demonstrates that the hearing on 18 September 2025 was a mention of the application for the purposes of directions for material and listing for trial. The prosecutor was well aware of that as she had been present on the previous mention. She informed the learned Magistrate that was so. Notwithstanding that, the learned Magistrate decided to proceed to make final orders. [81] Authorities in this Court establish that it will be a substantial breach of procedural fairness to proceed to a final hearing when a proceeding is listed for mention. The point is made in the passage from SNW at paragraph [53] above. It is also made in EW v RW and specifically applied by Acting Judge Haddrick in MMHS at [19] to [21]. The idea that a civil Court could proceed to make final substantive orders when a proceeding is before the Court for directions only, without notice to or consent of all parties, is fundamentally flawed. [82] It might be that the warnings dictated by the Act for inclusion in a protection order application or a variation application are thought to authorise proceeding to a final hearing whenever a respondent does not appear. If that is thought to be so, then it is wrong. [83] Section 34 of the Act provides: 34 Service of application (1) A police officer must personally serve the copy of the application prepared under section 33(1) or (2)(a) on the respondent. … (2) The copy of the application must state that, if the respondent does not appear in court— (a) a domestic violence order may be made in the respondent’s absence; or (b) the court may issue a warrant for the respondent to be taken into custody by a police officer if the court believes that it is necessary for the respondent to be heard. … [84] That section must be read with s. 39 which provides: 39 Hearing of application—non-appearance of respondent (1) This section applies if a respondent fails to appear before the court that is to hear and decide an application for a protection order and the court is satisfied that the respondent has been served with a copy of the application. … (2) The court may— (a) hear and decide the application in the absence of the respondent; or (b) adjourn the application, whether or not it makes a temporary protection order under division 2; or -- 17 of 22 -- 18 (c) subject to section 156(1), order the issue of a warrant for the respondent to be taken into custody by a police officer and brought before the court. [85] Equivalent provisions exist for a variation application: see ss. 88 and 94 above. Also relevant to those provisions is s. 156 which provides: 156 Provisions concerning warrants (1) A court must not order the issue of a warrant under this Act as a matter of course, but only where, in the circumstances of the case, the court believes it appropriate that the respondent or, as the case may be, offender, be heard. (2) If a person is taken into custody under a warrant issued under this Act, the provisions of the Bail Act 1980 apply to the person as if the person had been apprehended on a charge of an offence. [86] Sections 34 and 88 must be read together with ss. 39 and 94 respectively. The former sections require notification to the respondent of the express powers conferred on the Court by ss. 39 and 94. Sections 34 and 88 are concerned with notification only. They do not confer any power on the Court. It is ss. 39(2) and 94(2) to which the Court must look to identify its powers on non-appearance of the respondent. [87] Those two provisions are in identical terms other than for s. 94(2)(d), which need not concern us in this appeal as it is concerned with the failure of the applicant for the variation to appear. [88] I note the following in respect of those two provisions. [89] First, they confer a discretion on the Court to choose between the three alternatives in (a) to (c). That discretion must be exercised judicially and by reference to considerations which relevantly inform the discretion conferred. To simply adopt the first alternative without considering the other alternatives will not be a proper exercise of that discretion. [90] Second, subparagraph (a) in each provision authorises the court to hear and determine the application. It does not authorise making a final order in default without considering the merits, as explained above. [91] Third, to hear and determine the application requires it to be heard and determined according to law. That includes the law of procedural fairness. It will rarely (if ever) be consistent with a procedurally fair process to proceed to a substantive hearing for final relief when a proceeding has been listed for mention only, as I have already explained. There are several reasons, but they include: (a) A respondent will be likely to take more seriously and prepare more fully if a matter is going to trial as opposed to a matter being listed for mention. A respondent who overlooks a mention is less likely to overlook a trial listing; (b) A party who does appear on a mention will rarely if ever be properly prepared to make submissions on the trial of an application if they have attended believing the case is listed only for mention. This is particularly important once it is recognised that to hear and determine under s. 94(2)(a) requires a consideration of the merits and delivery of reasons; and (c) It is likely that evidence on the application will not be complete when the proceedings are listed for mention only, increasing the risk of error or unfairness in any hearing which occurs without warning on a mention date. [92] Further, it is arguable that ss. 39 and 94 apply only where a respondent does not appear on a date on which an application for a protection order or variation order has -- 18 of 22 -- 19 been listed for trial rather than for mention. The following considerations support that construction: (a) The reference in ss. 39(1) and 94(1) to the court “that is to hear and determine an application” is apt to refer to the Court before which the application is listed for trial. If it was otherwise, the words “hear and determine” would have no work to do. Court is defined by s. 6 of the Act as the court to which an application is made. So “the court” in ss. 39(1) and 94(1) will always be the Court in which the application was filed. The words hear and determine are then apt to describe a particular court, being the one in which the application is listed for hearing; and (b) Sub-section (2)(c) of ss. 39 and 94 seems unlikely to be intended to apply where an application is listed for mention only. It is difficult to accept that Parliament would intend that a court could issue a warrant to arrest a respondent to a civil application who did not appear on the mention of that application rather than at a trial of the application. Further, it is difficult to conceive of circumstances in which a Court could think it so important that it hears from a respondent on the issues raised on a mention that it could properly conclude that it was appropriate to issue a warrant for a person’s arrest. [93] While that seems arguable, it is difficult to reconcile s. 94(2)(b) with that construction. Given that the matter was not argued before me, I express no final view on that particular issue. [94] However, even if ss. 39 and 94 do apply where a matter is listed for mention only, the considerations in paragraph [92] serve to reinforce the importance of careful consideration of the discretion conferred by s. 94(2) before proceeding to hear and determine an application which has only been listed for mention. [95] In summary, to be clear: (a) Authority in this Court establishes that it will ordinarily be a material breach of procedural fairness to proceed to a final determination of an application for a protection order or variation order on a date on which a matter is listed for mention only; and (b) Even if ss. 39(2)(a) and 94(2)(a) confer power on a Court to proceed to a final determination of an application for a protection order or variation order on a date on which a matter is listed for mention only, that power is discretionary and must be exercised according to law. That requires the Court to turn its attention to and consider the alternatives identified in ss. 39(2) and 94(2) and where the decision might be contentious, provide reasons for the decision. In doing so, the Court must consider the principle articulated in paragraph (a) above. [96] It is a salutary process for a court expressly to consider the discretion conferred by the statute on non-appearance. It will ordinarily require a Court to consider with care: (a) Whether service has been properly proved as required by ss. 39(1) and 94(1); (b) Whether the lack of appearance might be the result of misunderstanding, mistake or misadventure; and (c) Whether there could be any unfairness in proceeding to hear and determine on the merits despite the lack of preparedness of the Court and/or the party which appears properly to do so. This includes considering whether the Court should -- 19 of 22 -- 20 proceed without inviting the party who appears to put relevant material before the Court or even whether to seek to have the respondent brought before the Court for that purpose. [97] Proceeding to hear and determine an application for final orders when a respondent has failed to appear on a mention only should happen rarely (if ever), and if it is to occur, a Magistrate must expressly consider the discretion conferred by ss. 39(2) or 94(2) as the case may be and give reasons for the decision to exercise the discretion in that manner. Conclusion [98] The above matters are a sufficient basis to uphold the appeal. However, there are some other aspects of the proceedings below which were unsatisfactory. [99] First, there was no proper inquiry as to whether DGC had appeared before, and what if any communications he had had about that matter with the Commissioner’s lawyers or the registry. Self-represented parties are frequently limited in their ability to organise themselves and keep track of Court dates. That is not to excuse failure to appear when notice has properly been given. But it is a matter which all Courts must keep in mind when proceeding in the absence of a self-represented party. That is more compelling where a final order is being made. That responsibility lies as much on the Commissioner as on the Court, perhaps more so. The Commissioner’s representative at a civil domestic violence hearing is frequently the only legal practitioner before the Court. The Court is entitled to look to that practitioner to assist the Court in avoiding error and ensuring a fair trial. Police prosecutors are mostly concerned with criminal proceedings but when called upon to deal with civil domestic violence matters, it is important that they familiarise themselves with the applicable principles. [100] Second, it was unclear from the transcript whether his Honour Judge Burnett AM’s reasons were put before the learned Magistrate or considered by him. Where there has been a successful appeal and a matter has been remitted, it is necessary for the Court to which the case has been remitted to consider the reasons given by the appellate Court. It was wrong for the Court to proceed without doing so. If it had done so, it would have seen that the problem below was that DGC had appeared at the trial and not had a fair trial for the reasons his Honour gave. His Honour’s reasons would have given the Court reason to hesitate about simply making the same orders as made in the previous hearing which was overturned on appeal. Precedent in civil domestic violence proceedings [101] In Lipohar v The Queen, Gaurdon, Gummow and Hayne JJ observed:21 The ultimate foundation of precedent which binds any court to statements of principle is, as Barwick CJ put it22, “that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court's judgment, has laid down that principle as part of the relevant law”. [102] The High Court in that case agreed in that articulation of the foundation of the doctrine in the earlier landmark decision of Viro v The Queen,23 in which judgment the High Court determined it was no longer bound by Privy Council decisions. The basis for that statement of principle was that, once appeals from the High Court to the 21 (1999) 200 CLR 485 at 506. 22 Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 591. 23 (1978) 141 CLR 88. -- 20 of 22 -- 21 Privy Council were abolished, the Privy Council was no longer in the High Court’s appeal hierarchy.24 [103] The doctrine of precedent is part of the common law of Australia ultimately articulated by the High Court.25 Needless to say, it applies to the Magistrates Court in respect of decisions by Courts above the Magistrates Court in the appeal hierarchy for the particular decision. [104] The identification of the appeal hierarchy of a Court is a matter of statute law. There is no common law right to an appeal.26 It must be considered by reference to the particular decision of the lower Court which is subject to a statutory appeal. Division 5 of Part 5 of the Act deals with appeals. Section 165 provides for an appeal to be started by filing a notice of appeal with the registrar of the “appellate court”. Sections 168 and 169 confer procedural and substantive powers in an appeal on the “appellate court”. “Appellate court” is defined in the Dictionary in the Schedule to the Act to mean, relevantly, “for a decision made by the Magistrates Court…the District Court”. Accordingly, the doctrine of precedent requires the Magistrates Court to follow the ratio of decisions of this Court in civil domestic violence proceedings.27 [105] This also imposes a duty on this Court to endeavour to speak with one voice on important points of principle in civil domestic violence matters. This adds particular weight for Judges of this Court to abide by the principle of comity in decisions made by Judges of this Court in civil domestic violence cases.28 Where this Court sitting in its appellate jurisdiction in relation to civil domestic violence matters adopts a common position on a point of principle in relation to civil domestic violence proceedings, a Magistrate is bound by the doctrine of precedent to apply that principle. To fail to do so is to fail to act according to law. [106] To round out this analysis, the Supreme Court’s supervisory jurisdiction under Part 4 JRA has only limited relevance to the above analysis. That Court can intervene (relevantly to this matter) only where it can be shown that there has been jurisdictional error in the District Court in dealing with an appeal from the Magistrates Court. The grounds for doing so are narrow given that Courts may make errors of law within jurisdiction.29 That possibility does not realistically impinge on whether the Magistrates Court is bound by decisions of this Court in civil domestic violence proceedings. Orders [107] The consequence of these reasons is that the appeal must be allowed, and the variation order made 18 September 2025 must be set aside. The Commissioner initially sought that the temporary order made 16 March 2025 be reinstated and the Variation Application be remitted for rehearing. I had reservations about doing so without receiving further submissions. Having made further inquiries, including with the aggrieved under the 2019 Order, the Commissioner no longer seeks remittal of the 24 Per Barwick CJ at 93, Gibbs J at 120-121, Stephen J at 129-130, Mason J at 135, Jacobs J at 150-151, Murphy J at 166 and Aickin J at 173. 25 Lipohar v The Queen (1999) 200 CLR 485 at 505 to 510 per Gaudron, Gummow and Hayne JJ. 26 South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 at 533; Fox v Percy (2003) 214 CLR 118 at [20]. 27 The question of how the doctrine of precedent applies where there is a hearing in the original jurisdiction of the District Court does not have to be dealt with here, nor is it practically an issue given that protection applications are invariably brought in the Magistrates Court. 28 Vukolic v Browning [2022] QDC 279 at [117] to [123]. 29 See for example OMD v District Court of Queensland [2026] QCA 91 at [6]. -- 21 of 22 -- 22 Variation Application. I therefore dismiss the Variation Application. That brings these proceedings to an end. -- 22 of 22 --