Chelsey (a pseudonym) v Goodwin (a pseudonym)

[2022] ACTSC 343

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Chelsey (a pseudonym) v Goodwin (a pseudonym)  

Citation:

[2022] ACTSC 343

Hearing Date:

8 December 2022

DecisionDate:

8 December 2022

Before:

Elkaim J

Decision:

(i)     The matter is set down for hearing before Justice Kennett on Thursday 15 December 2022 at 10 am.

(ii)     The applicant is to file and serve any written submissions and any further evidence by 5 pm on 12 December 2022

(iii)     The respondent is relieved of any obligations in respect of written submissions or any other procedure or matter.

(iv)    The respondent be informed of these orders by the Registrar and by the legal representatives of the applicant.

(v)     Liberty to restore to all parties on 24 hours’ notice.    

Catchwords:

APPEAL – APPLICATION – Application to stay order made by a magistrate – personal protection order – whether applicant is capable of understanding the personal protection order

Parties:

Chloe Chelsey (a pseudonym) (Appellant)

Ivan Goodwin (a pseudonym) (Respondent)

Representation:

Counsel

B Harders (Appellant)

Solicitors

Legal Aid ACT (Appellant)

File Number:

SCA 45 of 2022

Decision under appeal: 

Court/Tribunal:             Magistrates Court

Before:  Magistrate Stewart

Date of Decision:          24 November 2022

Court File Number(s):   PPO 438 of 2022

Elkaim J:

1․On 24 November 2022 Magistrate Stewart made a final Personal Protection Order against the appellant (the applicant).

2․On 5 December 2022 the applicant filed a notice of appeal against the order and also an application in proceeding to stay the Magistrate’s order. It is the application in proceeding that is before me today.

3․The application is supported by a report of Ms Wendy Styles, a registered psychologist, dated 13 November 2022.

4․The basis for the stay seems to be that because the applicant, as a result of a cognitive impairment, is likely to breach the personal protection order, it is in the interests of justice that she not be susceptible for such a breach. There has already been one breach, resulting in a charge to that effect, being laid on 28 November 2022.

5․Under the order made by Magistrate Stewart the applicant is prohibited from attending the [shopping mall located in Canberra] and from any act of personal violence against the protected persons.

6․The psychologist’s report makes some important observations. The applicant has a significant cognitive impairment. One of the manifestations of her impairment is that she, from time to time, becomes “impassioned and loud”. Ms Styles says she doubts that the applicant has the “ability to understand the nature of the Personal Protection Order….. its purpose, or the implications of it into the future”.

7․The notice of appeal contains a number of grounds, all of which essentially assert that the magistrate failed to give proper consideration to the applicant’s cognitive impairment in reaching a conclusion that an order should be made.

8․The respondent to the order is an employee of [a supermarket in Canberra]. He has been consistently subjected to verbal harassment from the applicant resulting from an incident in which the applicant was asserted to have been shoplifting. If the order is stayed then the respondent could well become the target of the applicant’s untoward, if not illegal, behaviour. On the other hand an order that will probably result, as it already has on one occasion, in the applicant becoming liable for further charges because of behaviour over which she has little or no control, seems somewhat unjust.

9․These facts have created something of a conundrum in which there is apparently a just reason for the order but at the same time an injustice in its application. I think the solution is to expedite the appeal hearing so as to limit the time during which the applicant can commit further breaches.

10․Accordingly I make the following orders;

(i)The matter is set down for hearing before Justice Kennett on Thursday 15 December 2022 at 10 am.

(ii)The applicant is to file and serve any written submissions and any further evidence by 5 pm on 12 December 2022

(iii)The respondent is relieved of any obligations in respect of written submissions or any other procedure or matter.

(iv)The respondent be informed of these orders by the Registrar and by the legal representatives of the applicant.

(v)Liberty to restore to all parties on 24 hours’ notice.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for  Judgment of his Honour Justice Elkaim.

Associate:

Date: