Bailey-Green v Longmuir - [2018] NTLC 18

CITATION: Bailey-Green v Longmuir [2018] NTLC 018

PARTIES:Howard BAILEY-GREEN
v
George LONGMUIR

TITLE OF COURT:  Local Court
JURISDICTION:  Civil
FILE NO:21806757
DELIVERED ON:  21 June 2018
DELIVERED AT:  Darwin
HEARING DATE(s):  1 June 2018
JUDGMENT OF:  Greg Macdonald
CATCHWORDS:

Personal Violence Restraining Orders Act – sections 4, 5, 9, 14, 15 & 16.
REPRESENTATION:

Applicant:self-represented
Defendant:self-represented
Judgment category classification:        A
Judgment ID number:  018
Number of paragraphs:                    20

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21806757
BETWEEN:

Howard BAILEY-GREEN

Applicant

AND:

George LONGMUIR

Defendant

REASONS FOR JUDGMENT
(Delivered 22 June 2018)
Judge Macdonald:
Background

On 6 February 2018 Mr Howard Bailey-Green (Applicant) made Application in respect of Mr George Longmuir (Defendant) for a personal violence restraining order (PVRO) under the Personal Violence Restraining Orders Act (Act).[1] On 27 February 2018 the parties were referred to the Community Justice Centre (CJC) for mediation of the dispute under s14 of the Act. On 29 March 2018 the Director of the CJC provided a written report to the court in compliance with s14(6) of the Act, which report essentially advised that the dispute had not been resolved by mediation because; “[t]he applicant declined the offer of mediation”.[2]
On 9 April 2018 the Application was listed for hearing, with various procedural directions being made for the filing of evidence in chief by Affidavit. Those directions were made against the background of an Affidavit in support filed, so apparently sworn, on 6 February 2018 by the Applicant. That Affidavit included an allegation that the Defendant, during a conversation with the Applicant at Woolworths Nightcliff on 4 February 2018, ‘swore at me and visually intimidated myself - he was in my face’. That conversation, and various other interpersonal interactions which ultimately found their way into evidence, was in the context of the Applicant having been employed as a Security Officer by Wilson Security at Batchelor Institute from May 2016, in circumstances where the Defendant was his supervisor. The February 2018 interaction was said to have resulted following the Applicant having sought relief in some other forum in respect of workplace or employment issues.[3]
In addition to his Affidavit of 6 February 2018, the Applicant also relied on an Affidavit filed 11 April 2018, which evidence became Exhibits A2 and A1 respectively. The Defendant also filed sworn evidence dated 6 April and 8 May 2018, which became Exhibits R1 and R2 respectively.
On 13 February 2018 the Applicant sought and was issued a summons, directed to the manager of Woolworths Nightcliff, requiring production of video footage (CCTV) from 4 February 2018 between 3:00pm and 4:00pm ‘of the baby milk and food area Isle (sic) and the whole check out Isle (sic) area’. That Summons was personally served by the Applicant on the manager of Woolworths Nightcliff at 3:30pm 14 February 2018, returnable 2:00pm 19 February 2018. Although the Applicant appeared before the court on the return date, the Court File endorsement does not record that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bailey-Green v Longmuir

Details

AGLC: Bailey-Green v Longmuir [2018] NTLC 18
Case: [2018] NTLC 18
Decision Date: 21 June 2018

CaseChat Overview and Summary

In the matter of Bailey-Green v Longmuir, the Federal Circuit Court was tasked with determining an application under the Personal Violence Restraining Orders Act 2011 (Cth) for a personal violence restraining order (PVRO) to be made against the defendant by the applicant. The applicant sought the PVRO following an incident that occurred on 4 February 2018, alleging personal violence by the defendant. The legal issues that arose centred around the application's validity, the sufficiency of evidence to meet the required standard of proof, and whether the court should make a PVRO.

The court considered the statutory framework under the Act, particularly sections 4, 5, 9, 14, 15, and 16. Section 15 of the Act mandates that for a PVRO to be made, the court must be satisfied that a personal violence offence has been committed or is likely to be committed. Section 16 requires the court to give paramount importance to the safety and protection of the applicant, including considering the defendant's criminal record and previous conduct. The court assessed the evidence provided, noting the difficulties inherent in self-represented litigants and the challenges in cross-examination and articulating their cases. Despite the oral nature of the incident, the documentary evidence was considered sufficient for the court's purposes. The court applied the Briginshaw principle to determine the standard of proof, requiring reasonable satisfaction based on the seriousness of the allegations and the consequences of the findings.

The court concluded that the applicant had not satisfied the requisite standard of proof to establish the alleged incident of personal violence. Given the lack of sufficient evidence, the application was dismissed. The court did not find it necessary to make a PVRO, as the applicant failed to meet the onus of proof required by the Act. The evidence provided did not meet the Briginshaw standard, leading to the conclusion that the application should not proceed.

The final orders of the court were that the application be dismissed, with no orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 15 of the Act then provides that to make a PVRO, the court must first be satisfied to the relevant standard that “…a personal violence offence has been committed, or is likely to be committed” by a defendant in relation to an applicant[6]. Section 16 also obliges the court to give paramount importance to the safety and protection of the applicant in deciding any application, which includes to consider any “criminal record” of the defendant[7] and the defendant’s “previous conduct” in relation to the applicant or anyone else. Section 16 enables and ensures that the court’s consideration of potentially relevant facts or circumstances is particularly broad.The hearing and evidence The Application was heard on 1 June 2018, with a brief mention also occurring on 21 June 2018.[8] Prior to the hearing each party had endeavoured to follow procedural directions of the court, and diligently sought to prepare for the hearing. However, aspects of the hearing on 1 June 2018 demonstrated the difficulties generally inherent in determining disputes where litigants are self-represented. This was particularly in relation to being able to cross-examine with any precision, and to clearly articulate their respective cases through submissions. Unfamiliarity with court procedure also resulted in the summons to Woolworths being ineffective. Towards the end of the hearing the Applicant also asserted that the Defendant had relevant evidence on his personal computer, which he had hoped to access. Although civil proceedings, the process of discovery does not generally apply to applications under the Act.[9] Regardless, given the oral nature of the incident of 4 February 2018 which precipitated the Application, and having regard to the documentary evidence received into evidence in the proceeding, any application for discovery would almost certainly have been declined. The sworn evidence in chief given at hearing is referred to at [2] and [3] above. Each party was also afforded opportunity to orally cross-examine the other, following being sworn. The importance of putting the crux of their case and positions to the other party in cross-examination was also made clear to each party prior to that process commencing.[10] Having regard to the evidence, it must be noted that any applicant under the Act bears an onus of proof, on the balance of probability. Despite that the civil standard applies, and notwithstanding the direction of s16(1) that paramount importance is be given to the safety and protection of the person for whose benefit the application is made, the consequences of a formal decision to make a PVRO invoke consideration of the Briginshaw principle.[11] That is;“…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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