DISTRICT COURT OF QUEENSLAND

CITATION:	PR v KJ [2022] QDC 29	
PARTIES:	PR
(appellant)	
	v	
	KJ
(respondent)	
FILE NO:	145/21	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Magistrates Court
Maroochydore	
DELIVERED ON:	28 February 2022	
DELIVERED AT:	Maroochydore	
HEARING DATE:	25 February 2022	
HEARD AT:	Maroochydore	
JUDGE:	Cash QC DCJ	
ORDER:	1.	The application for an extension of time within which to appeal is dismissed;
2.	The appeal is dismissed;
3.	The order of the Magistrate of 11 August 2020 is confirmed.	
LEGISLATION:	Domestic and Family Violence Protection Act 2012 (Qld), s 51, 145, s 165, s 168, s 169, s 184	
CASES:	DMO v RPD [2009] QDC 92, [5]-[6]
HBY v WBI & Anor [2020] QDC 81, [16]-[18]
HZA v ZHA [2018] QDC 125
R v Hodges [2019] 1 Qd R 172; [2018] QCA 92, [21]
R v Spina [2012] QCA 179, [32]
R v Tait [1999] 2 Qd R 667; [1998] QCA 304	
APPEARANCES:	K Pearson instructed by Hawkes Lawyers for the appellant
P Travers instructed by ABA Lawyers for the respondent	

Introduction
[1]	The appellant and respondent were once in a relationship. The appellant’s first language is not English. On 11 August 2020 the appellant appeared before a Magistrate to answer an application by the respondent for a protection order. The appellant was represented by a duty lawyer. The duty lawyer informed the Magistrate the appellant understood the proposed conditions and consented to a protection order being made without admissions by the appellant. The order was made.
[2]	About 12 months after the appeal period expired, the appellant filed a notice of appeal challenging the decision of the Magistrate. The questions presented by this appeal are:
(a)	Should the appellant have an extension of time within which to appeal?
(b)	Should the order be set aside on the basis that the Magistrate did not comply with statutory requirements?
(c)	Should it be set aside because the appellant did not understand the proceeding and as such the hearing was unfair?
[3]	In my view, the appellant should not have an extension of time within which to appeal because the appeal does not have any prospect of succeeding. As a consequence, the present proceeding must be dismissed. What follows are my reasons for coming to this decision.
Relevant background
[4]	Like many proceedings of this type, the background is procedurally complex. For the present appeal it is sufficient to note only some aspects of the history of the proceeding.
[5]	On 5 August 2020 the respondent filed an application for a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). The respondent set out in the application her view that the appellant did not “have a disability, illness or impairment where support and/or special arrangements” were required. Detailed allegations of domestic violence were set out in the application which were supported by attached copies of text messages sent by the appellant. The application was served upon the appellant on 10 August 2020.
[6]	On 11 August 2020 at 12.49 p.m. the matter was called on before a Magistrate. An unidentified speaker, who the parties agree was a duty lawyer, announced, “I’m appearing on behalf of the [appellant].” The court file records that the present appellant and respondent were both in court. The following exchange then occurred:
DUTY LAWYER:   I’ve got instructions to consent without admissions.
MAGISTRATE:   Yes. To what?
DUTY LAWYER:   All of it, your Honour.
MAGISTRATE:   What conditions?
DUTY LAWYER:   He understands them all.
POLICE PROSECUTOR:   It’s an ouster condition.
DUTY LAWYER:   Correct.
POLICE PROSECUTOR:   Not to remain or attempt to enter premises ---
DUTY LAWYER:   Only – there’s one little condition, and I understand it’s understood, that he leaves on the 19th, so if we can have it on or before the 19th of August, please, and she is aware of that.
MAGISTRATE:   All right. So ---
DUTY LAWYER:   So, do you want me to repeat what I ---
MAGISTRATE:   --- when I said “to what” I just – okay. There’s a child here, [redacted].
DUTY LAWYER:   So, obviously, we want a family law exception for that, your Honour.
MAGISTRATE:   So, the – uh – consent without admissions, to be of good behaviour towards the aggrieved and towards the named person.
DUTY LAWYER:   Yes, your Honour.
MAGISTRATE:   Which is [redacted]. And [redacted]. Okay. Not to approach within 100 metres of where the aggrieved lives or works; is that by consent?
DUTY LAWYER:   Yes, you Honour.
MAGISTRATE:   Yes. So, I’ll put here “lives or works”. Not to contact the aggrieved, not to locate the aggrieved; correct?
DUTY LAWYER:   Yes, you Honour.
MAGISTRATE:   Not to contact the aggrieved, not to locate the aggrieved, and the exception is in relation to that – only in relation to the children; is that right?
DUTY LAWYER:   Yes. So ---
MAGISTRATE:   So, mediations, counselling or when permitted under an agreement in writing, parenting plan or order.
DUTY LAWYER:   Yes, your Honour.
POLICE PROSECUTOR:   Thank you, your Honour.
MAGISTRATE:   And that order, by consent without admissions, to expire on the 10th of August 2025. Okay.
POLICE PROSECUTOR:   Thank you, your Honour.
DUTY LAWYER:   Thank you, your Honour.
MAGISTRATE:   Thank you. You can both go. Thank you.
DUTY LAWYER:   Is there an ouster in there as well?
MAGISTRATE:   Yes.
DUTY LAWYER:   And does it say that he can stay until the 19th of August?
MAGISTRATE:   Yes. It does now.
DUTY LAWYER:   Thank you, your Honour.
[7]	Consistent with what was said before the Magistrate, the Magistrates Court file records an order was made “by consent” and “without admissions” in the terms that had been discussed. The order was expressed as being in force until 10 August 2025. This is the order that is challenged in the appeal.
[8]	The appellant did not immediately appeal the Magistrate’s decision. In fact, no further step was taken in relation to the order until 23 March 2021 when the appellant applied for it to be varied. His application, which in truth appears to have been an application to set the order aside, indicated that he required an interpreter conversant in an identified Indo-Aryan language. On 6 April 2021 the appellant’s application to vary the order was dismissed. The court file records there was no appearance by the appellant. Three days later, on 9 April 2021, the appellant applied again to vary (or end) the order. This time he indicated he did not require an interpreter. The second application came before a Magistrate on 12 April 2021 and was adjourned, in the absence of the present respondent, until 14 May 2021. On that day the application to vary the existing order was again adjourned, this time to 25 May 2021. As well, on 14 May 2021, the Magistrate suspended the order of 11 August 2020 and made a temporary protection order in practically identical terms. On 25 May 2021 the application to vary the order was dismissed, which also operated to end the suspension of the order from 14 May 2021 and the temporary order made at the same time. Yet another application to vary the protection order was made by the appellant on 28 May 2021. This application is yet to be decided in the Magistrates Court.
[9]	The events since 11 August 2020 are not directly relevant to the merits of the appeal but have some relevance when deciding if the appellant should have the necessary extension of time within which to appeal.
[10]	It was not until 6 September 2021 that the appellant commenced the proceeding in this Court to challenge the decision of the Magistrate on 11 August 2020. Pursuant to section 165(4) of the DFVPA, an appeal against such a decision must be filed within 28 days of the date of the decision, or the date when the appellant was told of the decision. In this case, the appeal should have been filed on or before 9 September 2020. While the appeal was filed almost a year out of time, this court “may at any time extend the period for filing the notice of appeal” pursuant to section 165(5). Whether such an extension of time should be allowed depends upon an assessment of any explanation for the delay and the merits of the proposed appeal.
[11]	Section 165(2)(a)(ii) of the DFVPA also required the appellant to serve a copy of the notice of appeal on the police commissioner. Prior to the hearing of the appeal, my associate drew this requirement to the attention of the parties. As a consequence, the appellant’s lawyers filed a further affidavit confirming the Commissioner was served on 29 September 2021. The Commissioner has not exercised her right to appear in this appeal.
The nature of the appeal – statutory framework and legal principles
[12]	The nature of an appeal against the making of a domestic violence protection order was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below.
[16]	The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal and the start of an appeal does not affect the operation of the decision unless there is a further order of the court: see s 165 and 166 of the Act. Section 168 of the Act provides that the ‘hearing procedures’ for the appeal are:
“168 	Hearing procedures
(1)	An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
(2)	However, the appellate court may order that the appeal be heard afresh, in whole or part.”
[17]	Section 169 of the Act provides that the powers of the appellate court are:
“169 	Powers of appellate court
(1)	In deciding an appeal, the appellate court may—
(a)	confirm the decision appealed against; or
(b)	vary the decision appealed against; or
(c)	set aside the decision and substitute another decision; or
(d)	set aside the decision appealed against and remit the matter to the court that made the decision.
(2)	The decision of the appellate court upon an appeal shall be final and conclusive.”
[18]	An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to be relied on: see Glover at [76]. The exercise of the discretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s 3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”: see s 4(1) of the Act.
[13]	One other provision of the Act should be mentioned. Section 145 provides that a court hearing an application for a protection order is not bound by the “rules of evidence” or “any practices or procedures applying to courts of record”. As well, the court need only be satisfied of a matter on the balance of probabilities.
[14]	Because the appellant wished to refer to evidence that was not before the Magistrate, it is appropriate to say something more about the circumstances in which this Court might receive evidence when determining an appeal against the making of a protection order. As Moynihan QC DCJ observed, the legislation provides that an appeal is to be decided on the evidence and proceedings at first instance. The reception, on an appeal, of evidence that was not before the Magistrate is exceptional. Guidance as to when it is appropriate to receive such evidence may be found in the approach of the common law to “fresh” and “new” evidence. The distinction between fresh and new evidence is important. In R v Spina [2012] QCA 179, McMurdo P stated (at [32], citations omitted):
Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.
[15]	While her Honour’s observations related to criminal proceedings, they are apposite here. Parties to any proceeding should generally be held to their conduct at first instance. An appeal by way of rehearing is not to be regarded as an opportunity for a disappointed litigant to try a different approach to the one that failed at first instance. Before a party would be permitted to rely upon new evidence (that is, evidence available at the hearing at first instance), it would usually be necessary for the party to show that the evidence compels the conclusion that the decision at first instance was wrong. In other words, new evidence will only be received where it demonstrates there has been a miscarriage of justice. In the case of fresh evidence, the barrier to admission may be easier to overcome.
The grounds of appeal
[16]	The ground of appeal identified in the notice of appeal is, in effect, a complaint that the hearing before the Magistrate lacked procedural fairness and was unfair because the appellant did not understand what was occurring. The implication of such a conclusion would be that the order was wrongly made and should be set aside. From the outline filed on behalf of the appellant a further complaint may be discerned: that the Magistrate did not comply with statutory requirements when making the order. The particulars of the latter complaint are that the Magistrate
(a)	Did not, pursuant to section 51(5) of the DFVPA, “conduct a hearing of the particulars of the application, to establish if, in the Courts opinion, it was in the interest of justice” to make the order. (I have reproduced verbatim the submission of the appellant at paragraph 3.1(a) of his outline, including the errors in grammar. The significance of the words of this submission will become apparent when compared to the actual text of the statute.)
(b)	Did not ask the appellant if he consented to the order (section 51(1) of the DFVPA).
(c)	Did not ensure the appellant understood the purpose, terms, and effect of the proposed order (section 84 of the DFVPA).
[17]	It is convenient to deal first with the complaint that the Magistrate did not comply with the applicable statutory requirements.
Did the Magistrate err in not applying section 51(5) of the DFVPA?
[18]	As I have just noted, the appellant complains that the Magistrate did not “conduct a hearing of the particulars of the application, to establish if, in the Courts opinion, it was in the interest of justice” to make the order. This point may be dealt with briefly. Section 51(5) does not require a court to conduct such a hearing to establish if it is in the interests of justice to make a protection order. The section is set out in full below.
51	Court may make 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.
(2)	However, if the respondent is a child the court may make the order only if the court is satisfied as to the matters mentioned in—
(a)	for a proceeding for a protection order—section 37; or
(b)	for a proceeding for a temporary protection order—section 45.
(3)	Also, subject to subsection (4), if a police officer, or authorised person for the aggrieved, is acting on behalf of the aggrieved in the proceeding, the court may make the order only if the court is satisfied that the aggrieved consents to the making of the order.
(4)	The consent of the aggrieved is not required under subsection (3) if—
(a)	a police officer is acting on behalf of the aggrieved in the proceeding; and
(b)	the aggrieved is not present in court and can not, after all reasonable enquiries, be contacted to give the consent; and
(c)	the police officer reasonably believes that the order promotes the safety, protection and wellbeing of the aggrieved, any named person, and any child affected by the order.
(5)	Before making or varying a domestic violence order under this section, the court may conduct a hearing in relation to the particulars of the application if, in the court's opinion, it is in the interests of justice to do so.
(6)	The court may refuse to make or vary a domestic violence order under this section if the court believes the making or variation of the order may pose a risk to the safety of an aggrieved, any named person, or any child affected by the order.
(7)	To remove any doubt, it is declared that sections 54, 56 and 84 continue to apply in relation to a proceeding under this section.
[19]	It can immediately be seen that section 51(5) is in permissive terms (“may”) and is directed to the court conducting a hearing into the particulars of the application if the court is of the opinion it is in the interests of justice to conduct such a hearing. Contrary to the suggestion implicit in the appellant’s submission, the provision does not impose upon a Magistrate a requirement to decide if the making of a protection order, in the exercise of the power granted by section 51(1), is in the interests of justice.
[20]	This complaint is without foundation.
Was the Magistrate required to ask the appellant if he consented to the order?
[21]	The appellant was represented by a lawyer at the hearing before the Magistrate. The lawyer announced, on behalf of the appellant and in his presence, that the lawyer had “instructions to consent without admission”. As a starting point, the Magistrate was entitled to act upon the statements made by the duty lawyer on behalf of the appellant. Just because the lawyer was a duty lawyer does not mean his obligations to the Court and the appellant were any less onerous. There is no requirement in the statute for the Magistrate to confirm with the appellant directly that he consented. All that section 51(1) required was for the Magistrate to be satisfied that the parties consented to, or at least did not oppose, the order and that a relevant relationship existed. Subject to the issue concerning the appellant’s capacity to understand the proceedings, there is no merit to this complaint.
Did the Magistrate ensure the appellant understood the order?
[22]	A court that is about to make a protection order in the presence of a respondent (as the appellant then was) is required to ensure the respondent understands the “purpose, terms and effect of the proposed order”, the “type of behaviour that constitutes domestic violence”, what may follow if the respondent contravenes the order and that the respondent can apply to vary the order – section 84(2) of the DFVPA. Notably, however, section 84 also provides
(4)	The process that the court adopts to comply with this section may include using services of, or help from, other people to the extent the court considers appropriate.
Examples of services or help the court may consider appropriate—
1 The court may arrange for the clerk, or a public service employee at the court, to explain the order to an aggrieved or respondent.
2 A professional interpreter or the telephone interpreter service (but not a relative or friend of the aggrieved or respondent) may be used to explain the order to an aggrieved or respondent.
3 Explanatory notes prepared for aggrieveds or respondents, including non-English speakers, may be given to an aggrieved or respondent.
4 The court may arrange with a local government indigenous regional council under the Local Government Act 2009, community justice group or group of elders for someone to explain the order to an aggrieved or respondent.
5 The court may arrange with a non-government service provider for a disability case worker to explain the order to an aggrieved or respondent who has a disability.
(5)	Failure to comply with this section does not invalidate or otherwise affect a domestic violence order.
[23]	The examples to be found in the legislation do not limit, but may extend, the meaning of the provision, and the provision and examples are to be read in the context of each other and other provisions of the DFVPA. When the section is read with this in mind the result is that compliance with section 84 may be achieved by providing a written note of the matters requiring explanation. In this case, and consistent with the usual practice, the appellant was given a document titled “Explanation of Domestic Violence Order – For Respondent”. The court file indicates this document was handed to the appellant on 11 August 2020, the day the order was made. That he received the document is confirmed by exhibit RDP-1 of the appellant’s affidavit. The document sets out the matters required by section 84 to be explained. As well, during the hearing, for which the appellant was present, there was some discussion of the terms of the order. In these circumstances, and subject only to the issue of the appellant’s ability to comprehend English, I am satisfied the Magistrate complied with section 84.
Was there an absence of procedural fairness because the appellant did not understand the proceeding?
[24]	There are several complaints made by the appellant that may be grouped together under a claim that he was not afforded procedural fairness, and the hearing miscarried, because he could not understand what took place in court. It should immediately be noted that there was nothing in the way the hearing was conducted that might have alerted the Magistrate to any concern in this regard. The appellant was represented by a lawyer and was himself present in court. Neither the appellant nor the duty lawyer raised a concern about the appellant’s understanding during the hearing. 
[25]	Nevertheless, procedural fairness is usually an essential requirement of a hearing to determine if a protection order should be made, and a hearing in which a party is prevented from participating may usually be considered unfair. The real question is whether the appellant has established he so lacked understanding of the proceeding before the Magistrate he was denied participation in it.
[26]	Consideration of this question must begin with the hearing itself. As may be seen in the transcript set out above, the Magistrate and the duty lawyer representing the appellant discussed in some detail the order that was proposed. The duty lawyer was careful to point out to the Magistrate that the standard ouster clause needed to be modified to allow the appellant to remain at the home until 19 August. He pointed out to the Magistrate the need for a “family law exception” to the “no contact” clause. In the presence of the appellant, and without any indication of dissent by him, the duty lawyer told the Magistrate the order was by consent and that the appellant understood the conditions. From this the following conclusions may be reached. First, the duty lawyer must have spoken with the appellant for a time and in a manner to be able to understand his circumstances and the need for adjustments to be made to standard conditions. If that is not the case, why was the duty lawyer concerned to amend the detail of the ouster clause? The information behind that submission could only have come from the appellant. The same can be said of the reference to a “family law exception”. The conduct of the hearing is a clear indication that the appellant was able to communicate sufficiently with the duty lawyer to convey this information. Secondly, and having regard to this apparent ability to communicate with the duty lawyer, it can be inferred that the appellant was able to appreciate the essence of the hearing before the Magistrate. The hearing was short and uncomplicated. Even a person with limited proficiency in English, and especially one aided by a lawyer, would have understood the nature of the hearing. Thirdly, and connected with this point, whether or not the appellant understood every aspect of the hearing is of less significance where he was represented by a duty lawyer with whom he had spoken prior to the hearing. The law does not require a court to ensure a party represented by lawyers has a complete understanding of every aspect of a proceeding as a precondition to a fair hearing. Many litigants who are entirely proficient in the English language will still fail to understand aspects of a legal hearing. That is why it is usually of benefit to instruct trained lawyers. 
[27]	When these matters are considered together, they indicate the appellant sufficiently understood the hearing and the making of the protection order. Absent other cogent evidence compelling some different conclusion, that would deal with this ground of appeal.
[28]	The appellant has filed affidavit material said to address his capacity to comprehend the English language. This evidence might be received if it were apt to demonstrate that the hearing before the Magistrate miscarried. However, it must be noted that much of the affidavit material filed by the appellant is either irrelevant or incapable of proving the claim he advances. First there is an affidavit of the appellant’s solicitor, Adrian Hawkes. In it, he deposes to “lengthy and arduous” consultations with the appellant since July 2021 in connection with this appeal and other proceedings. Mr Hawkes attributes this to the appellant’s “English language difficulties”. In my view, the opinion apparently held by Mr Hawkes says nothing of the fairness of the hearing in August 2020. Mr Hawkes does not disclose the content of his discussions with the appellant. That is probably appropriate given it would almost certainly include matters that are privileged. But he refers to criminal charges and proceedings in Commonwealth courts under the Family Law Act 1975 (Cth). It may be assumed that the consultations necessary to deal with such matters are likely to be more complex than the matters in issue at the hearing before the Magistrate. Whatever difficulties Mr Hawkes may have encountered in 2021, I cannot conclude the same difficulties must have existed in relation to the hearing in 2020, or that they prevented a fair hearing before the Magistrate.
[29]	There are two affidavits of the appellant. The first is mostly irrelevant. It traverses allegations that might have been relevant had the appellant contested the making of the protection order before the Magistrates Court. None of this material constitutes “fresh” or “new” evidence. Lawyers who represent parties in appeals of this kind are expected to understand the nature of such appeals, and in particular the restrictions on the admission of evidence not before the Magistrate. It is the responsibility of the lawyers to limit the material to that which is arguably admissible. The only parts of the appellant’s first affidavit that are arguably admissible are paragraphs [23] to [26] concerning his English proficiency and [40] to [45] dealing with his contact with the duty lawyer. The latter is of some significance. The appellant admits he told the duty lawyer that he was the author of the messages relied upon by the respondent in her original application as constituting acts of domestic violence. The appellant then asserts the duty lawyer told him he “had to consent” to the protection order. Assuming this was said by the duty lawyer, it was good advice. At least some of the messages sent by the appellant undoubtedly constituted acts of domestic violence. Once the appellant instructed the duty lawyer that the appellant sent these messages, a protection order was a practical inevitability. It would be no surprise if the duty lawyer advised the appellant to consent to the protection order without making admissions. Nothing set out by the appellant as to his contact with the duty lawyer suggests unfairness or that the hearing miscarried.
[30]	In addition, the appellant’s description of these discussions provides further support for my conclusion that the appellant was able to communicate effectively with the duty lawyer before the hearing. That he also had, or has, some difficulty communicating in English is not inconsistent with this conclusion.
[31]	The appellant’s second affidavit simply exhibits a letter written in October 2021 by a person who was the appellant’s cookery teacher at TAFE Queensland. The author of the letter expresses an opinion about the appellant’s proficiency in English. The difficulties that may arise from an attempt to rely upon hearsay evidence in an affidavit for use in proceedings seeking final relief may be put to one side. That is because the opinion of the letter writer does not compel the conclusion that in August 2020 the appellant was unable to understand the straightforward hearing before the Magistrate, assisted as he was by a duty lawyer.
[32]	The affidavit material relied upon by the appellant does not show that the hearing was unfair or miscarried. That being the case it should not be admitted in the appeal and I remain of the view expressed at paragraph [25] that the appellant sufficiently understood the hearing and making of the protection order. That being the case, there is nothing to cast doubt on my conclusions at paragraphs [20] and [22] about the conduct of the hearing.
Conclusion and orders
[33]	I have dealt with each matter raised by the appellant. I am not satisfied that the Magistrate erred in his application of the statute nor that the hearing was otherwise unfair. For the reasons stated above there is no merit to the appeal. There is also no explanation, let alone any satisfactory explanation, for the long delay before the appeal was filed. There is no point granting an extension of time as the appeal would inevitably fail. The appropriate orders are to refuse an extension of time within which to appeal, dismiss the appeal and confirm the order of the Magistrate made on 11 August 2020.
[34]	The respondent seeks her costs of the appeal. There is a power to award costs and it is probably governed by the Uniform Civil Procedure Rules 1999 (Qld). If that is so, costs would usually follow the event and the respondent would have a prima facie entitlement to the benefit of a costs order. I would invite the parties to consider if they can reach agreement as to the costs of the appeal. In the event the parties cannot reach agreement I will decide the question “on the papers” and each party has leave to file written submissions addressing the issue, not exceeding five pages, on or before 14 March 2022.