Ballerini v Brown - [2005] ACTSC 75

BALLERINI v BROWN [2005] ACTSC 75 (5 AUGUST 2005)

APPEAL – appeal from Magistrates Court – exercise of discretion – costs.
JURISDICTION, PRACTICE AND PROCEDURE – jurisdiction – variation of costs order of magistrate – where Protection Orders Act 2001 (ACT) does not include costs orders as an appealable ground to the Supreme Court – Supreme Court Act 1930 (ACT), s 20 – the extent of the inherent powers of the Supreme Court – Kelly v Apps (2002) 98 FCR 101 applied.

Protection Orders Act 2001 (ACT), s 7, s 31, s 78, s 79, s 95, s 106, Part 6
Protection Orders Regulations 2002 (ACT), s 89

Magistrates Court Act 1930 (ACT), s 207
Supreme Court Act 1933 (ACT), s 20
Australian Capital Territory (Self Government) Act 1988 (Cth), s 48

Kelly v Apps (2000) 98 FCR 101
N R Pty Ltd v Kearney [2000] ACTSC 92 (24 October 2000), Miles CJ
B & H (2001) 118 A Crim R 120, Miles CJ
Vann v Palmer [2001] ACTSC 12 (22 February 2001), Crispin J
CD v Chief Executive Department of Education & Community Services (2000) 27 Fam LR 19, Crispin J
Rose v Snape [2000] ACTSC 115 (7 December 2000) Higgins J
FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82 (6 October 2000), Crispin J
FAI Properties Pty Ltd v Apostolopoulos (2002) 169 FLR 232
Harrison v Commissioner for Housing [2003] ACTSC 22 (11 April 2003) Connolly J
Jones v Commissioner for Housing for the Australian Capital Territory [2003] ACTSC 52 (30 June 2003) Connolly J
Director of Public Prosecutions (ACT) v McDowall (2002) 168 FLR 474
Commissioner for Housing v Ganas (2003) 175 FLR 337
Evans v Shiels (2004) 185 FLR 1
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351
R v Grassby (1989) 15 NSWLR 109

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 7 of 2005

Judge: Gray J
Supreme Court of the ACT

Date: 5 August 2005

IN THE SUPREME COURT OF THE )
) No. SCA 7 of 2005
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:JOHN BALLERINI
Appellant

AND:SUSAN BROWN
Respondent

ORDER

Judge:  Gray J
Date:  5 August 2005
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld and no further order be made.

These proceedings, by way of appeal, arise from a decision by a magistrate that the applicant (the appellant in these proceedings) for an interim domestic violence order, who had applied for that order to be revoked, pay to the respondent to that order (and the respondent in this appeal) costs fixed at $1,300.00.

Background

On 16 November 2004, the appellant sought, against the respondent, to whom he had been married, an interim protection order under Part 6 of the Protection Orders Act 2001 (ACT) (Protection Orders Act) in respect of himself and the two children of the marriage. The application alleged behaviour of an offensive or harassing nature. At the time it…

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 Ballerini v Brown

Details

AGLC: Ballerini v Brown [2005] ACTSC 75
Case: [2005] ACTSC 75
Decision Date: 5 AUGUST 2005

CaseChat Overview and Summary

The appellant, Ballerini, appealed against a decision of the Magistrates Court of the Australian Capital Territory which dismissed an application to vary an order for costs. The respondent, Brown, had previously been granted a domestic violence protection order against the appellant under the Protection Orders Act 2001 (ACT). Following a subsequent application by the appellant, the Magistrates Court dismissed an application to vary the costs order. The appellant sought to appeal the decision on the basis that the court had exercised its discretion to award costs in a manner that was unreasonable or unjust.

The central legal issue before the court was whether the Supreme Court of the Australian Capital Territory had the jurisdiction to review a costs order made by the Magistrates Court in this context. The court considered the relevant statutory provisions, specifically the Protection Orders Act 2001 (ACT) and the Supreme Court Act 1930 (ACT). The court also examined relevant case law, including Kelly v Apps (2002) 98 FCR 101, to determine the extent of the inherent powers of the Supreme Court in relation to costs orders.

The court found that the Protection Orders Act 2001 (ACT) did not include costs orders as an appealable ground to the Supreme Court. The Supreme Court Act 1930 (ACT) provided that the Supreme Court could only review the exercise of discretion by the Magistrates Court if the order was shown to be unreasonable or unjust. However, in this case, the appellant had not demonstrated that the Magistrates Court had exercised its discretion in a manner that was unreasonable or unjust. The court therefore held that it did not have jurisdiction to review the costs order made by the Magistrates Court. The appeal was dismissed.

The court did not make any further orders as the appeal was dismissed on the basis of lack of jurisdiction.

Orders

Orders of the court

The appeal be upheld and no further order be made.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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