Chelsey (a pseudonym) v Goodwin (a pseudonym) (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Chelsey (a pseudonym) v Goodwin (a pseudonym) (No 2)

Citation:

[2022] ACTSC 364

Hearing Date:

15 December 2022

DecisionDate:

16 December 2022

Before:

Baker J

Decision:

1.    The appellant is granted leave to adduce the affidavit of AB, affirmed on 12 December 2022.

2.    The appeal is allowed.

3.    The orders made by Magistrate Stewart on 24 November 2022 are set aside.

4.    The interim order of 20 May 2022 is discharged.

Catchwords:

APPEAL – Appeal from ACT Magistrates Court – appeal against personal protection order made under s 26 of the Personal Violence Act 2016 (ACT) – relevance of the appellant’s capacity to the personal protection order – application to adduce further evidence - error found in Magistrate’s decision

Legislation Cited:

Evidence Act 2011 (ACT), s 13, 91

Crimes Act 1900 (ACT), s 334

Personal Violence Act 2016 (ACT), s 6, 10A, 11, 17, 19, 26, 68, 70, 87

Cases Cited:

AB v CD [2015] ACTMC 9

CDJ v VAJ [1998] HCA 67; 197 CLR 172

CM v TM [2011] ACTSC 53

Critchley v Magistrates’ Court of Victoria [2019] VSC 435

Farthing v Phipps [2010] NSWDC 317

House v The King [1936] HCA 40; 55 CLR 499

Jovanovic v R [2015] ACTCA 29

N v N (No 2) [2015] ACTSC 48

R v Presser [1958] VR 45

TS v DT [2020] ACTCA 43

Parties:

Chloe Chelsey (a pseudonym)

Ivan Goodwin (a pseudonym)

Representation:

Counsel

B Harders ( Appellant)

No appearance ( Respondent)

Solicitors

ACT Legal Aid (Appellant)

No appearance ( Respondent)

File Number:

SCA 45 of 2022

Decision under appeal:  

Court: ACT Magistrates Court

Before: Magistrate Stewart

Date of Decision: 24 November 2022

Court File Number: PPO 438/2022

BAKER J:

Introduction

1. The appellant appeals under s 85 of the Personal Violence Act 2016 (ACT) (“the Act”) against the imposition of a final Personal Protection Order (“PPO”) imposed on her by Magistrate Stewart (“the Magistrate”) on 24 November 2022.

1. The PPO prohibits the appellant from:

(a) being in the following particular places, that is Level 1, Westfield Woden, Corner Hindmarsh and Melrose Drive Woden;

(b) engaging in behaviour that constitutes personal violence towards the protected person, including but not limited to the following behaviour: not to talk to or yell at the protected person.

1. The protected person, who is the respondent to the appeal, was personally served with the appeal papers, but did not appear at the hearing of the appeal.

1. An appeal under s 85 of the Act is in the nature of a rehearing: see CM v TM [2011] ACTSC 53 at [14], per Refshauge J and TS v DT [2019] ACTSC 295 at [53], per Crowe AJ. As the decision appealed from is discretionary in nature, it is necessary to demonstrate error of the nature described in House v The King [1936] HCA 40; 55 CLR 499.

1. The appellant relies on ten grounds of appeal. Most of the grounds of appeal contend…