Abha Narang (a pseudonym) v Parth Patil (a pseudonym)
[2021] ACTMC 15
•26 November 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Abha Narang (a pseudonym) v Parth Patil (a pseudonym) |
Citation: | [2021] ACTMC 15 |
Hearing Date(s): | 26 November 2021 |
DecisionDate: | 26 November 2021 |
Before: | Special Magistrate Hopkins |
Decision: | See [25] |
Catchwords: | FAMILY VIOLENCE ORDER – JURISDICTION, PRACTICE AND PROCEDURE – Re-enlivening lapsed Final Order following application for extension made before original order ends – Family Violence Act 2016 (ACT) ss 83, 84 & 86 – ‘Slip Rule’ – Applicability of Court Procedures Rules 2006 (ACT) r 6906. |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 67 |
Cases Cited: | Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 4) [2021] FCA 459 Endresz v Commonwealth of Australia [2019] FCAFC 197; 273 FCR 286 Flint v Richard Busuttil & Co Pty Limited [2013] FCAFC 131; 216 FCR 375 |
Parties: | Abha Narang (Applicant) Parth Patil (Respondent) |
Representation: | Counsel M Johnson (Applicant) A Neilan (Respondent) |
| Solicitors Legal Aid ACT (Applicant) Neilan Stramandinoli Family Law (Respondent) | |
File Number(s): | FVO 291/2019 |
SPECIAL MAGISTRATE HOPKINS:
On 26 November 2021, the Court heard an Application by Abha Narang (“the Applicant”) to extend a lapsed Final Family Violence Order made by Deputy Registrar Power on 28 May 2019. Counsel for the Applicant filed carefully considered written submissions on 17 November 2021.
The Respondent was excused from attending the hearing, having indicated that he neither consented to nor opposed the Application.
Following brief oral argument by the Applicant’s counsel to supplement written submissions, Orders were made in the terms sought by the Applicant. See [25]. It was indicated that the submissions of the Applicant were accepted and that written reasons for the decision would be provided.
Issue for Determination
The issue for determination is whether, in the circumstances of this case, the Court has the power to extend and/or re-enliven a Final Family Violence Order that was not temporarily extended after an Application to Extend that Order was filed within time.
The issue is significant because if the Court is not able to re-enliven or extend the relevant Order and the Application to Extend is frustrated, the Applicant has no recourse other than to file a new Originating Application for a ‘fresh’ Family Violence Order pursuant to s 34 of the Family Violence Act2016 (ACT) (“the Act”). This would prejudice the Applicant because the test in s 34 is more onerous than that in s 86 of the Act (which applies to an Application to Extend).
Facts and Procedural History
A Final Family Violence Order (FVO291/19) was made by consent and without admission on 28 May 2019 for a period of two years (thus expiring on 28 May 2021 unless extended). The Applicant, Ms Abha Narang, and a child are the Protected Persons. Mr Parth Patil is the Respondent.
On 14 May 2021, the Applicant filed an Application to Amend a Family Violence Order or Registered Order, seeking that the Final Family Violence Order made on 28 May 2019 be extended until 28 May 2023 (“the Application to Extend”).
On 25 May 2021, Magistrate Campbell ordered that:
a. FVO291/19 be temporarily extended until 16 June 2021; and
b. That the parties attend a Registrar’s Conference on 16 June 2021.
On 16 June 2021, the Applicant attended the Registrar’s Conference without legal representation. The matter was not finalised. Importantly, the Applicant did not seek a temporary extension of the Family Violence Order to enable it to be continued until resolution of her Application for extension. FVO291/19 was not further extended at the Conference and it thus expired that day.
On 9 September 2021, the parties appeared before Deputy Registrar Kamarul:
a. The Applicant was self-represented. The Respondent was represented by Ms Neilan of Neilan Stramandinoli Family Law;
b. The Court identified that FVO291/19 had not been extended. To overcome the issue, the Court:
i. Issued an Interim Order in the same terms as FVO291/19 (by consent and without admission);
ii. Granted leave to the Applicant to file a ‘fresh’ Application for a Family Violence Order within 14 days; and
iii. Listed the matter for a hearing on 21 October 2021.
On 19 October 2021, at the Pre-Hearing Call-over before Deputy Registrar Kamarul:
a. The Applicant was represented by Mr Johnson of Legal Aid ACT and the Respondent was represented by Ms Neilan of Neilan Stramandanoli Family Law.
b. The Applicant sought Orders in similar terms to those outlined in the Minute of Orders Sought filed herewith, and in doing so relied upon rules 6906 and 1600 of the Court Procedures Rules 2006 (ACT).
c. The Court was not satisfied that it had the power to make the Orders sought by the Applicant; that issue was subsequently listed for determination by a Magistrate, and the Final Hearing of 21 October 2021 was vacated and set down for 27 January 2022.
Relevant Law
The Applicant relies on the ACT Magistrates Court’s power to correct mistakes in its orders arising from inadvertence and to amend defects and errors in proceedings before it. This power is typically referred to as the ‘Slip Rule’ and that term is adopted for the purposes of this decision.
Had the original Order been further temporarily extended on 16 June 2021 until final determination, that final determination would have required the Court to consider the test for extension set out in s 86 of the Act.
Section 86(1) of the Act is expressed in mandatory terms. It provides that:
The Magistrates Court must, on application, amend a final order (the original order) by extending it for a stated period unless satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent.
In effect, s 86(1) puts an onus on a respondent to an application to extend, to establish on the balance of probabilities that the ‘protection order is no longer necessary to protect the protected person from family violence by the respondent’.
This can be contrasted with s 34 of the Act which sets out the grounds for making, rather than extending, a Final Order, placing the onus squarely on the applicant. Section 34(1) provides that:
A court may, on application, make a final order if satisfied that—
(a) the affected person has reasonable grounds to fear family violence by the respondent; or
(b) the respondent has used family violence against the affected person.
The power to correct mistakes arising from inadvertence and amend defects and errors in proceedings stems from multiple sources. These include:
a. The Court’s implied/inherent powers arising from s 258 of the Magistrates Court Act 1930 (ACT);
b. Section 67 of the Court Procedures Act 2004 (ACT);
c. Rule 6906 of the Court Procedures Rules 2006; and
d. Rule 1600 of the Court Procedures Rules 2006.
The Slip Rule was discussed at length and applied by the Full Court of the Federal Court of Australia (Rares, Markovic and Charlesworth JJ) in Endresz v Commonwealth [2019] FCAFC 197; 273 FCR 286. That case was recently distilled into five principles by Lee J of the Federal Court of Australia in the decision in Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 4) [2021] FCA 459 at [25].
i. The starting point is that the slip rule is available to vary an order to address an accidental slip or omission arising from the inadvertence of the Court or a party. The purpose of the rule is to avoid injustice to the parties by ensuring the Court’s orders reflect its intention at the time the orders were made or reflect the intention that the Court would have had but for the accidental slip or omission: Endresz (at 312 [73]).
ii. The Court retains a discretion to refuse to make an order by invoking the slip rule if something has intervened which would mean that it is “inexpedient or inequitable that it be made”: Endresz (at 312 [73]), citing L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) (1982) 151 CLR 590 (at 597 per Mason ACJ, Wilson and Deane JJ).
iii. Courts have been careful to ensure that the application of the slip rule is kept within principled constraints, given the public interest in the finality of litigation: Endresz (at 32 [74]).
iv. Particular complexity arises where it is sought to rely on the slip rule to vary or add an order that is the product of an independent discretion: Endresz (at [74]). In such cases, the question of how the discretion would have been exercised but for the suggested slip or omission becomes the relevant factor: Endresz (at [74]).
v. Depending upon the circumstances of the case, hindsight reasoning may not enable an inference to be drawn as to the intention of the Court at the time of the making of the relevant order: Endresz (at [87]); see also Flint v Richard Busuttil & Company Pty Ltd [2013] FCAFC 131; (2013) 216 FCR 375 (at 384 [46] per Allsop CJ, Katzmann and Perry JJ).
The Slip Rule is not confined to errors or omissions of the Court and extends to errors or omissions resulting from the inadvertence of a party’s legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; 151 CLR 590. However, there is some uncertainty as to the rules availability where the omission constitutes a failure to seek an Order, the making of which would have necessarily engaged the Court’s discretion: Harrell & Nesland (No. 2) [2021] FamCAFC 35 at [68]. The clearest guidance may be found in Flint v Richard Busuttil & Co Pty Limited [2013] FCAFC 131 at [46] per Allsop CJ, Katzmann and Perry JJ:
..if the surrounding circumstances are such (as they can be taken to have been in Elyard) that it can be concluded that proper attendance to the matter (had the error not occurred) could only have resulted in the discretion being exercised in one way, it is difficult to see why the rule should not apply in the same way that it would if the discretion had been exercised and there had been a mere failure to record it. As Lockhart J said in Elyard at 392; ALR 211-12; ACSR 812-13, the purpose of the rule is to avoid injustice. The force of Storey & Keers and Whitlock v Brew can be accepted if there is any room for debate as to the exercise of the discretion. For instance, if there is any debate as to whether it would have been just and equitable to have made an order under s 52, in line with well-established principle, the slip rule cannot apply.
In Wickey v R (No 2) [2012] ACTCA 51; 269 FLR 289, Refshauge J had cause to consider the statutory expression of the Slip Rule contained in Rule 6906 Court Procedure Rules with respect to a failure to backdate a sentence of imprisonment to take account of pre-sentence custody. Rule 6906(1) permits orders of the Court to be corrected if, inter alia:
(a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or certificate of the court; and
(b) the mistake or error resulted from an accidental slip or omission.
In the course of his decision, Refshauge J at [24] stated a general test for the application of the rule as follows:
The general test for application of this rule was stated by Lord Herschell in Hatton v Harris [1892] AC 547 at 558, approved by McHugh JA in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453: “In general, the test of whether a mistake or omission is accidental is ... if the matter had been drawn to the court’s attention, would the correction at once have been made?”
Consideration
Section 86 of the Act required the Court to extend the Order unless satisfied that it was not necessary to do so. This required an exercise of the Court’s discretion that did not occur.
The oversight may be seen to be the result of the self-represented Applicant’s failure to press for that extension on 16 June 2021. This does not prevent the ‘Slip Rule’ being engaged where:
a. The Court had already exercised the relevant discretion on 25 May 2021 and extended the Order;
b. There could be no doubt that had the Applicant brought the issue to the Court’s attention, the Court would have exercised its discretion once more to further extend the Order;
c. Given the mandatory nature of s 86, the Applicant had a reasonable expectation that the Order would be extended again on 16 June 2021, without the need to raise the issue independently; and
d. It would substantially prejudice the Applicant if her Application to Extend were nullified on the basis that s 86 would not therefore be engaged.
Given the above, it is accepted that the ‘Slip Rule’ is engaged and the Court has the power to remedy the omission pursuant to Rule 6906, this power is fortified by Rule 1600 Court Procedure Rules 2006 and by s 67 of the Court Procedures Act 2004 and s 258 Magistrates Court Act. I am satisfied that it is in the interests of justice to exercise the power as sought by the Applicant. In doing so, I note that the Orders made are not expressed to have retrospective application.
Orders:
On 26 November 2021, the Court ordered:
i.That the Final Family Violence Order made by Deputy Registrar Power on 28 May 2019 and extended on 25 May 2021 until 21 June 2021, be further extended from the date of these Orders until 4:00pm on 27 January 2022 or until final determination of the Application to Amend a Family Violence Order
or Registered Order filed by Abha Narang on 14 May 2021, whichever occurs earlier.
ii.It is declared that the Application to Amend a Family Violence Order or Registered Order, filed 14 May 2021 is valid.
iii.That the Interim Family Violence Order made by Deputy Registrar Kamarul on 09 September 2021 be discharged.
iv.That the Application for a Family Violence Order filed by Abha Narang on 21 September 2021 be dismissed.
| I certify that the preceding twenty five [25] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Hopkins Associate: Date: 8 December 2021 |
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