CAO v HAT [2013] QDC 42

DISTRICT COURT OF QUEENSLAND CITATION: CAO v HAT [2013] QDC 42 PARTIES: CAO (applicant/appellant) v HAT (first respondent) COMMISSIONER OF POLICE (second respondent) FILE NO/S: DC No 3046 of 2012 DC No 3309 of 2008 DIVISION: Civil PROCEEDING: DC No 3046 of 2012- General Civil Appeal - Miscellaneous Application – Civil; DC No 3309 of 2008 - Miscellaneous Application – Civil ORIGINATING COURT: DC No 3046 of 2012 - Magistrates Court at Brisbane DELIVERED ON: 15 March 2013 DELIVERED AT: Brisbane HEARING DATE: 11 March 2013 JUDGE: Devereaux SC DCJ ORDER: DC No 3046 of 2012 1. The appeal is dismissed. 2. The applications, filed within the appeal proceeding, that charges of contempt of court be brought against three named persons are dismissed. DC No 3309 of 2008 3. The application to re-open the appeal is dismissed. CATCHWORDS: PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION –CONTEMPT – WHAT CONSTITUTES – IN GENERAL – applications for contempt filed pursuant to r 925 Uniform Civil Procedure Rules 1999 (Qld) – where application relied on five affidavits – where earlier court orders required proof of service of applications and any supporting affidavits – where applicant sent applications and one affidavit in support by registered post – whether personal service effected on respondents pursuant to r 106 Uniform Civil Procedure Rules 1999 (Qld) – whether earlier orders satisfied -- 1 of 14 -- 2 MAGISTRATES – ORDERS AND CONVICTIONS – ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY – VARIATION, REVOCATION AND EXTENSION – where domestic violence order obtained against appellant – where appellant unsuccessful in application to revoke – where appellant appeals against decision refusing revocation – where it was argued that subpoenaed material proved the aggrieved lied to the original trial so that the original order was obtained by fraud for the purposes of r 667 Uniform Civil Procedure Rules 1999 (Qld) – whether there was an error regarding various sections of the Domestic and Family Violence Protection Act 1989 (Qld) (repealed) – whether primary court unfairly pre-determined the outcome – whether there are sufficient grounds to allow an appeal to revoke the domestic violence order PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – APPEAL AND NEW TRIAL – where applicant applies for leave to re- open appeal decision of District Court judge – where application relies on s 147A Justices Act 1886 (Qld) – whether applicant can seek leave to re-open appeal District Court of Queensland Act 1967 (Qld), s 129 Domestic and Family Violence Protection Act 1989 (Qld) (repealed), s 17A, s 34 , s 35, s 36, s 38, s 47(5), s 48, s 48(5), s 51, s 63, s 64(A) Domestic and Family Violence Protection Act 2012 (Qld), s 34, s 39, s 91, s 92, s 165, s 167, s 168, s 209 Justices Act 1886 (Qld), s 147A Uniform Civil Procedure Rules 1999 (Qld), r 106, r 667, r 668, r 925, r 926 CAO v Hedges [2013] QCA 1, cited Cloud v State of Queensland [2002] QCA 458, cited Costello v Courtney [2001] 1 Qd R 481, cited Schmidt v Schmidt [2001] QDC 289, cited Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, cited COUNSEL: The appellant appeared on her own behalf The first respondent did not appear IP Fraser (sol) for the second respondent and the Commissioner of Police as respondent to contempt application A D Scott for two respondents to contempt applications SOLICITORS: The appellant appeared on her own behalf The first respondent did not appear Queensland Police Service solicitor for second respondent and respondent to contempt application Crown Law for two respondents to contempt applications -- 2 of 14 -- 3 [1] On 17 November 2008, a magistrate made a domestic violence order directed against the appellant.1 The aggrieved person was her adult daughter. The appellant appealed against that order. That appeal was dismissed on 21 October 20092 (the 2009 appeal). [2] On 15 February 2012, the appellant applied to the Magistrates Court to revoke the order made on 17 November 2008. That application was heard and dismissed on 10 July 2012. [3] The appellant has now commenced the following proceedings in this court:  In proceeding 3309/08 - Application to re-open the 2009 appeal (the re- opening application);  In proceeding 3046/12 - Appeal, by notice filed 7 August 2012, against the decision of the magistrate of 10 July 2012 (the appeal); and - Application, filed 19 November 2012, for various orders including four orders that certain persons be ―brought before‖ the court ―for contempt of court‖. - Three applications, filed on 14 January 2013, for multiple orders that ‗a charge of contempt be brought‘ against the person named in each application. Two of these applications name persons already named in the application of 19 November 2012. [4] The domestic violence order was made under the Domestic and Family Violence Protection Act 1989 (repealed) (the 1989 Act). The 2009 appeal and the application to revoke were also conducted under that Act. The Domestic and Family Violence Protection Act 2012 (the 2012 Act) commenced operation on 17 September 2012. [5] On 28 November 2012, Kingham DCJ dismissed some of the 19 November 2012 applications and made orders requiring the appellant to do certain things by certain times. The times were varied by order of McGill SC DCJ on 12 December 2012. So amended, the relevant orders of Kingham DCJ were: ‗4. The application alleging contempt by [the four persons named in the 19 November 2012 application] are adjourned for hearing with the appeal before Judge Kingham in Brisbane on 11 March 2013, subject to the following: (a) Unless otherwise ordered, by 4pm 14 January 2013 [the appellant] must file and serve on each of the persons named in Order 4 an application (‗the contempt application‘) which sets out in specific detail: (i) What actions by each individual [the appellant] says constitutes contempt of court; (ii) Why the actions specified constitute a contempt of court. (b) Unless otherwise ordered, by 4pm 14 January 2013 [the appellant] must file affidavit or affidavits demonstrating 1 For convenience, I will refer to the applicant/appellant as the appellant. 2 No 3309 of 2008, Robertson DCJ, 21 October 2009. -- 3 of 14 -- 4 personal service on each of the persons named in Order 4 of the contempt application, and any supporting material including any affidavits already filed by [the appellant] on which she intends to rely in support of the contempt application. (c) If [the appellant] does not fully comply with the requirements set out in a) and b) above, then, unless there is a prior order to the contrary, the contempt applications will be dismissed on 4pm 15 January 2013 without further hearing. 5. [the appellant] must file and serve on [the respondent] and the Commissioner of Police, Queensland, her outline of argument on the appeal by 4pm 14 January 2013. 6. If [the appellant] wishes to lead any evidence on appeal that was not before the Magistrates Court on the hearing of her application on 10 July 2012, which is the subject of this appeal, by 4pm 14 January 2013 she must file and serve on [the respondent] and Commissioner of Police, Queensland, an application which: (a) Seeks leave to file further evidence; (b) Describes in detail or, in the case of documentary evidence, attaches a copy of the evidence she wishes lead; and (c) Sets out the reasons why she should be granted leave to lead that evidence.‘ [6] The appellant had filed another application on 7 December 2012 for various orders. These included an order that the Commissioner of Police be removed as a party to her appeal and that the hearing be at a court outside Brisbane.3 McGill SC DCJ dismissed these applications on 12 December 2012. [7] On 10 January 2013, the appellant brought another application, relevantly for orders: (1) setting aside paragraphs 4(b) and (c), 6, 7 and 8 of the orders made by Kingham DCJ; and (2) for a subpoena to issue directing the Commissioner of Police (one of the persons named in the contempt applications) to appear at the hearing of the application. [8] On 15 January 2013, Samios DCJ dismissed these applications. The contempt applications [9] At the hearing of the applications and appeal the appellant abandoned the applications filed on 19 November 2012. She relied on her affidavits and outline of argument. Representatives for the respondents submitted written outlines and relied on affidavit material. At the end of the hearing I gave the appellant leave to file 3 The Commissioner has a right to appear and be heard on the appeal: s. 64A Domestic and Family Violence Protection Act 1989 (repealed); s. 167 Domestic and Family Violence Protection Act 2012. -- 4 of 14 -- 5 further written arguments by close of business on Thursday 14 March 2013. I have received and considered her further 11 page outline. [10] By the applications of 14 January 2013, she seeks to have brought before the court and charged with contempt three persons: Mr Stewart, Queensland Commissioner of Police, who is a party to the appeal in the sense that he has exercised the right to appear and be heard on the appeal; an officer of the Magistrates Court and a legal support officer in the office of the Director of Public Prosecutions (the DPP employee). [11] In the application concerning Mr Stewart the appellant nominates r. 925 of the Uniform Civil Procedure Rules 1999 (the UCPR) as the provision under which Mr Stewart should be dealt with. I proceed on the basis that the applicant seeks that the other named persons be dealt with under the UCPR. Rule 925 is within Part 7 – Contempt, Division 3 - Application for punishment for contempt. Rule 925(1) provides: ―(1) This division applies to the following contempts— (a) contempt constituted by failure to comply with an order of the court or an undertaking given to the court; (b) contempt committed in the face of the court; (c) any other contempt of the court; (d) contempt of another court.‖ [12] A District Court judge has the same power to punish for a contempt as a Supreme Court judge would have if the contempt were a contempt of the Supreme Court. The District Court of Queensland Act 1967 defines contempt. Subs. 129(1) provides: ―(1) A person is in contempt of the District Court if the person: (a) without lawful excuse, fails to comply with an order of the court (other than an order mentioned in paragraph (e)), or an undertaking given to the court; or (b) wilfully insults a judge or juror, or a registrar, bailiff, or other court officer during the person‘s sitting or attendance in court, or in going to or returning from the court; or (c) wilfully interrupts the proceedings of the court or otherwise misbehaves himself or herself in court; or (d) unlawfully obstructs or assaults someone in attendance in court; or (e) without lawful excuse, disobeys a lawful order or direction of the court at the hearing of any proceeding; or (f) commits any other contempt of the court.‖ -- 5 of 14 -- 6 [13] An application for punishment of a person for contempt ‗and any affidavit in support must be served on the respondent personally.‘4 How personal service is to be performed is described in UCPR r. 106. [14] The appellant has sworn5 that on 10 January 2013 she sent an application and ―a supporting affidavit of‖ herself to the three persons named in the 14 January 2013 applications. It is not clear that she sent each person the application relevant to him or her. The applications and one affidavit were filed on 14 January 2013. I infer that is the affidavit she deposes to having sent with the application. The applications and the affidavit filed on 14 January 2013 appear to have been signed and dated on 9 January 2013. Each application informs the respondent that at the hearing of the application the appellant intends to rely on 5 listed affidavits. One of them is the affidavit sworn on 9 January 2013 and filed on 14 January 2013. The appellant has not, therefore, served the application ‗and any affidavit in support‘ on the respondents. That is, she has purported to serve the respondents with only one of the five affidavits she intended to rely on in the application. [15] In any case, the appellant has not personally served the 14 January 2013 applications on the three respondents because what she did does not satisfy r. 106. She posted the applications from Wellington, New South Wales. She has attached the ―receipts for those postings‖ to her affidavit. She deposes to having ‗marked each envelope as “Private and Confidential” and used the word “Personally” alongside each of their respective names.‘ [16] In Costello v Courtney [2001] 1 Qd R 481, a case concerning the failure of a party to comply with orders made in the proceeding, Wilson J., at 484, said, „The Court approaches any contempt proceedings cautiously, and generally requires strict compliance with procedural rules.‟ [17] It is not appropriate to allow these applications to proceed in the face of the breach of the rules. Except that one of the bases for the application against the Commissioner of Police seems to be the inadequacy of his response to a summons to produce documents (issued from the Magistrates Court), none of the alleged contempts is constituted by failure to comply with the order of any court.6 None is an alleged contempt in the face of a court.7 No other type of contempt is comprehensibly articulated.8 [18] The charges the appellant wants brought against the officer of the Magistrates Court are (1) that on 29 October 2012 he falsely certified a document to be a true copy of a document filed in the Magistrates Court at Cleveland on 6 February 2008 and (2) he allowed the employee of the office of the Director of Public Prosecutions named in another application to see the document. [19] The charges the appellant wants brought against the employee of the office of the Director of Public Prosecutions relate to (1) his seeing and (2) obtaining a copy of the document referred to in the previous paragraph, and (3) that he ‗engaged an 4 UCPR r. 926(3). 5 Affidavit sworn 10 January 2013; filed 14 January 2013. 6 UCPR r. 925(1)(a). 7 UCPR r. 925(1)(b). 8 UCPR r. 925(1)(c). -- 6 of 14 -- 7 Officer of the Brisbane Magistrate‟s Court to falsely certify said document as the Original Application by the First Respondent, knowing it not to be the case‟. [20] The document was the application form for a Protection Order, made by the respondent and dated 6 February 2008. This document is at the centre of the appellant‘s complaints. The certified copy bears a stamp of the Magistrates Court at Brisbane. The appellant has exhibited a copy, which she says is the application form that was served on her in February 2008, which bears a stamp of the Magistrates Court at Cleveland and is missing three pages. [21] In my view, the appellant is mistaken as to the nature of the certification. The certification reads: ‗I hereby certify that the within photocopy is a true and correct copy of the document of which it purports to be a copy.‘ It is not an assertion that the document before the clerk was the document filed in the Cleveland Magistrates Court in February 2008. [22] The charges the appellant wants brought against Mr Stewart are that (1) he failed to comply fully with a subpoena; (2) he falsified evidence; (3) he authorised the DPP employee to view and obtain a document on a court file without permission of the Supreme Court or any party to the proceedings; and (4) he authorised the DPP employee to obtain a falsely authorised document from the Magistrates Court officer. [23] The appellant‘s failure to serve the applications on the three respondents to the 14 January applications personally and with all relevant material is sufficient to prompt dismissal of those applications. [24] The appellant‘s failure to comply with the UCPR – as to personal service and service of any affidavit in support - also constitutes failure to comply with the clear and detailed orders made by Kingham DCJ as amended by McGill SC DCJ. The failure to comply with the court order provides another reason to dismiss the applications. Indeed, it is arguable that, the appellant having failed to comply with the orders of Kingham DCJ, the applications mentioned therein must be taken to have been dismissed on and from 4pm 15 January 2013. To be clear, I dismiss the applications because the appellant did not serve them according to the UCPR and the orders made by Kingham DCJ as amended by McGill SC DCJ. [25] In the circumstances it is not necessary to examine further the allegations made nor other issues raised, such as: (a) whether the application against the Commissioner of Police was intended to be brought personally or, in effect against the Police Service generally; (b) the submission of the Commissioner of Police regarding Crown immunity from contempt proceedings; (c) the relevance of the fact that Mr Stewart was not, I am told, the commissioner at the time the subpoena was served; (d) whether s. 129 of the District Court of Queensland Act or r. 925 empowers this court to deal with an alleged contempt of the Magistrates Court. -- 7 of 14 -- 8 The appeal [26] The appellant applied, under s. 51 of the 1989 Act, to revoke the protection order made on 17 November 2008. Section 63 of that Act provided for an appeal to this court by a person aggrieved by an order of a Magistrates Court refusing the application for revocation. By s. 209 of the 2012 Act, the appeal is taken to be an appeal under s. 165 of the 2012 Act. [27] Section 168 of the 2012 Act provides that the appeal is to be decided on the evidence and proceedings before the magistrate. This court may order ‗that the appeal be heard afresh, in whole or in part.‘ (subs. 168(2)). The 6th order of Kingham DCJ, set out above, prescribed the manner in which the appellant might seek to present further evidence on the appeal. [28] The material before the magistrate was the application for revocation, a letter dated 5 May 2012 - in effect a written submission – from the Brisbane Police Prosecution Corps and the appellant‘s written outline in reply. [29] On 14 January 2013, the appellant filed, among other things, an outline of argument for the appeal and an affidavit which attaches an affidavit of hers sworn on 26 October 2012 and filed in the Magistrates Court. She also referred to an affidavit of the DPP employee named in the contempt applications, which was in the materials on file, sworn on 30 October 2012 in the Court of Appeal proceeding CA No 127 of 2012. That affidavit attaches a copy of the certified copy of the Protection Order Application form referred to above. I am prepared to regard these materials in the appeal despite the appellant‘s failure to comply with the orders of Kingham DCJ and her refusal to seek leave to rely on them. Also, at the end of the hearing I gave the appellant leave to submit further written argument. She has filed a 13 page reply to the Police Commissioner‘s submissions which I have read and considered. [30] The form, Application to Revoke or Vary a Domestic Violence Order, contains the question: Why do you want to cancel the existing domestic violence order? The appellant wrote: (1) The original order granted in (hearsay) evidence, which was false, evidence will be subpoenaed. (2) The witness falsely claimed she was abused and that I abused her sons whereas evidence (physical withheld) proves to the contrary. (3) Made a death threat voice mail to Fed./Family Ct. Registrar purporting to be me. [31] The submission contained in the letter from the Prosecution Corps was that the appellant had not, in her application, demonstrated changed circumstances as required by s. 17A of the 1989 Act. That section provided: „If circumstances change after a domestic violence order has been made, a person may, under section 51, apply for a variation or revocation of the order.‟ [32] The Prosecution Corps argued that the first two points raised by the appellant refer back to the 2008 hearing and were matters for appeal. The third point was addressed in the Family Court. The Family Court judge spoke of the death threat -- 8 of 14 -- 9 and the appellant‘s assertion that her daughter had made it, pretending to be the appellant. The judge expressly made no finding but noted the event highlighted the dysfunctional relationship between mother and daughter. The letter included the information that the aggrieved daughter ‗was most upset by‘ the application and considered it ‗a continuation of the harassment towards her‘. [33] In her written reply, the appellant argued s. 17A was not the only basis for an application under s. 51. A person may apply under s. 51 and the relevant considerations are set out in s. 36. Its first 3 subsections provide: „(1) A court may revoke a domestic violence order if an application for revocation is made to the court under section 51. (2) In considering the application, the court must have regard to- (a) any expressed wishes of the aggrieved; and (b) any current contact between the aggrieved and respondent; and (c) whether any pressure has been applied, or threat has been made, to the aggrieved by the respondent or someone else for the respondent; and (d) any other relevant matter. (3) The court may only revoke the order if the court considers the safety of the aggrieved or a named person would not be compromised by the revocation.‟ [34] In her written reply, which was before the learned magistrate, the appellant complained that the aggrieved, her daughter, gave false evidence at the hearing in November 2008. She also referred to the unusually long period of the order and the apparent basis for it relied on by the magistrate, namely that the appellant, though living in New South Wales at the time of hearing, would travel to Brisbane from time to time. She argued that if a change of circumstances must be shown, it was shown by her proof that the aggrieved gave false evidence at the original hearing. She also discussed orders and comments of other magistrates and a sergeant of police (the author of the Prosecution Corps letter). [35] At the hearing of the application, the appellant explained to the learned magistrate that, although subpoenas had issued for the production of documents, she had not seen the documents yet. She agreed with the learned magistrate that they all related back to the 2008 hearing. The appellant asserted that the aggrieved had given false evidence at the original hearing and argued, in effect, that the decision made in 2008 was, therefore, vitiated by fraud and was liable to be set aside. She referred to UCPR r. 667. The learned magistrate doubted that the UCPR had any application in litigation under the domestic violence legislation. [36] The learned magistrate concluded that all of the three reasons for revocation which the appellant wrote in her application form related to issues that were litigated at the original hearing. While he agreed that s. 17A was not the only basis on which one could apply for revocation of an order, it was not open to the appellant simply to -- 9 of 14 -- 10 attempt to re-litigate the issues upon the application.9 The learned magistrate referred to the decision of McGill SC DCJ in Schmidt v Schmidt [2001] QDC 289 (see below) and s. 36 of the 1989 Act. His Honour noted that the aggrieved had expressed the wish for an end of the litigation and that there had been ‗no current contact‘. His Honour concluded, ‗So that preliminary step of there needing to be a change of circumstances which has been set out time and time again by the court can‟t be met by the applicant in these proceedings.‘10 [37] The grounds of appeal to this court may fairly be stated thus: There was an error regarding s. 17A; ss. 36 and 38 apply; the court unfairly pre-determined the decision; the subpoenaed material proves the aggrieved lied to the original trial and the original order should not have been granted. [38] The appellant‘s written and oral submissions on the appeal elaborated on these grounds. At the hearing she concentrated on demonstrating that the copy of the application for a protection order that was served on her in February 2008 was not the same document as the one in the Brisbane registry of the Magistrates Court. So, it was argued, the order made in November 2008 was invalid because the application that was determined in the hearing in 2008 was not served upon her. [39] I have referred to these documents above. They feature in the contempt applications. The document which the appellant says was served on her bears a Cleveland Magistrates Court stamp. It is missing several pages. There is another copy of the application form bearing a Brisbane Magistrates Court stamp. It is the complete document. The missing pages contain information which, the appellant says, had she seen it before the hearing, would have prompted her to produce other evidence. [40] The materials make it clear the application was filed in Cleveland and, indeed, an order was made there. But that order was revoked on 26 February 2008.11 On 26 February 2008, further proceedings were adjourned to Brisbane Magistrates Court. The hearing of the application took place over 6 days – 22 May, 24 June, 25 June, 20 October, 21 October and 22 October. The trial magistrate‘s decision was given on 17 November 2008. Consideration The attack on the 2008 decision - Service of the application for a protection order [41] A respondent must be served with an application for a protection order.12 Failure to serve the respondent becomes relevant should the respondent not appear at the hearing.13 At the time of the hearing, the appearance of the respondent was evidence the respondent had been served.14 [42] I have examined the Magistrates Court file, as the appellant invited me to, and am quite satisfied that the document served on her is in substance the same as an 9 Transcipt 1-22.15 10 Transcript 1-23.1. 11 CAO v Hedges [2013] QCA 1 at [3]. 12 1989 Act s. 47(5); 2012 Act s 34. 13 1989 Act s. 48; 2012 Act s 39. 14 1989 Act s. 48(5). -- 10 of 14 -- 11 application form on the file. It may be that she was served with an incomplete document. Even if it were relevant on this appeal to show that the appellant was not served with a complete copy of the application, given the length of the trial nothing can be made of the argument that the hearing thereby miscarried. I am quite satisfied the issue presents no basis for overturning the learned magistrate‘s decision not to revoke the order. The attack on the 2008 decision – fraud [43] It is unnecessary to decide whether UCPR r. 667 has any application to a proceeding under the Domestic and Family Violence Protection Act 2012 or its predecessor. Even if the material obtained under subpoena, which the appellant says she has now had the opportunity to view (subject to the issues raised in the contempt applications) demonstrated that the aggrieved lied at the original hearing, that would not, in this case, call for the setting aside of the decision as one obtained by fraud under r. 667(2)(b). In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 539, Kirby P, while allowing that perjury might be a ground for setting aside a decision as one obtained by fraud, the mere allegation or even proof of perjury would not normally support the ―drastic and exceptional relief‖ of setting aside the judgment.15 He continued: „In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.‟ [44] I think it is not open, on an application to revoke or vary an order, to attack the original decision. There is an appeal process for that. But even if I am wrong there, I am not satisfied the appellant has established a basis for revoking the order in this case. The correct approach to an application to revoke [45] The learned magistrate, while agreeing with the appellant that s. 17A did not describe a pre-condition for an application to revoke an order, nonetheless dismissed the application because the applicant had not demonstrated a change of circumstances.16 The danger with that approach is that it might divert attention from the relevant considerations, which were set out in s. 36 of the 1989 Act. It is difficult to see what purpose s. 17A had, except to reassure persons affected by orders that if circumstances change they may apply for a variation or revocation of the order. It acted more as a footnote to s. 17, which concerned the conditions of a domestic violence order. It did not really add to ss. 51 and 36. 15 See also Cloud v State of Queensland [2002] QCA 458. 16 See paragraph 34 above. -- 11 of 14 -- 12 [46] That said, the considerations set out in s. 36 were designed to focus attention on circumstances at the time of the application to revoke. They culminated in subs. 36(3) – the (present and future) safety of the aggrieved must be compromised. [47] In Schmidt v Schmidt, McGill SC DCJ said, ―[24] Even if there was a full hearing of an application for revocation, that would not necessarily (or perhaps even usually) involve a reconsideration of the issues which led to the making of the original domestic violence order. Because revocation only operates for the future, the issue on an application to revoke a domestic violence order is not necessarily whether the order was properly made in the first place, but will be rather whether it is necessary or appropriate for it to continue to operate. In other words, is there a continuing risk of domestic violence to the aggrieved spouse, or some continuing need for protection in the form of an order? It would be open on an application for revocation to assert that a domestic violence order was not appropriate because there never had been any domestic violence so that the requirement of s.20(1)(a) was never met, although such an application should not be used simply as a means of reopening or rearguing questions which had been resolved already by a proper hearing.” [25] Whether an application for revocation should involve a consideration of whether the order should originally have been made will depend on the particular circumstances of the case; ………………. But if there has been a proper hearing on the first occasion, then an application for revocation should not be simply an opportunity to re-agitate issues which were properly before the court and properly determined on the first occasion.” [48] I notice the 2012 Act does not specifically provide for an application to revoke an order, although a person may apply for a variation of the duration of an order, to potentially the same end.17 Before a court may vary an order it must consider, among other things, the grounds set out in the application for a protection order and the findings of the court that made the domestic violence order. These provisions, found in s. 91 of the 2012 Act, copy parts of s. 35 of the 1989 Act. The considerations set out in s. 36 of the 1989 Act are also preserved – with respect to an application for a variation which the court considers ‗may adversely affect the safety, protection or well being of the aggrieved or any named person‘– in s. 92 of the 2012 Act. [49] The learned magistrate took into account such information as there was relevant to the s. 36 considerations. He was correct to conclude the materials did not call for revocation of the order. There was nothing before his Honour to permit the conclusion that the safety of the aggrieved or a named person would not be compromised by revocation of the order. Upon my review of the record including the further materials filed by the appellant I reach the same conclusion. 17 2012 Act s. 86. -- 12 of 14 -- 13 [50] The appeal must be dismissed. The application to re-open the 2009 appeal [51] On 8 February 2013, the appellant filed an application for orders that the appeal heard on 21 October 2009 by Judge Robertson at Maroochydore be re-opened; an order that the application served on her in February 2008 and the document certified by the Magistrates Court officer are not identical; that the orders of the magistrate on 17 November 2008 and Judge Robertson of 21 October 2009 be set aside because the application founding them was not served on her and that the appeal be upheld. [52] In her affidavit in support of the application the appellant deposes that on 20 October 2009 she received a telephone call from the District Court. She was told her appeal would be heard at Maroochydore. She swears there were no transcripts before the appeal judge. She was unwell at the time and says she was in no real position to argue the appeal. [53] The appellant relied on s. 147A of the Justices Act 1886 as the permitting the application. It does not. That provision, which appears in Part 6 - Proceedings in case of simple offences and breaches of duty, empowers justices to set aside a conviction or vacate or vary any order where the conviction or order is based on or contains an error of fact. [54] If, which I doubt, there is power to re-open an appeal, no reason to do so is shown in this case. In particular, if UCPR rr. 667 and 668 could apply to this proceeding, I am satisfied none of the bases set out in those rules to stay, set aside or vary the order of Robertson DCJ is made out. [55] This application must be dismissed. Conclusion [56] The appeal, the contempt applications and the re-opening application are to be dismissed. Yet is must be said that the appellant has been subject to an extraordinarily long order. The original magistrate set the period of 5 years: „I consider that as the domestic violence has been committed over many years, being at least 10 years or more, special circumstances exist to make an order for this period of time‟.18 [57] Her Honour said the order would continue until 16 November 2013 unless sooner varied or revoked. It is not clear why the sealed order is expressed as continuing until 16 November 2014. [58] It is, perhaps, unsurprising the appellant has applied to revoke the order. No doubt she will, as she may under the 2012 Act, apply again to vary it. Any new application should be approached with a focus on the issues set out in ss. 91 and 92 of the 2012 Act, rather than the approach taken by the Police Prosecution Corps and the appellant to the application I have reviewed. [59] The orders will be: 18 Transcript of proceedings. Magistrates Court, Brisbane 17 November 2008 at 7.50. -- 13 of 14 -- 14 In DC No 3046 of 2012 The appeal is dismissed. The applications, filed within the appeal proceeding, that charges of contempt of court be brought against three named persons are dismissed. In DC No 3309 of 2008 The application to re-open the appeal is dismissed. -- 14 of 14 --