Deng v Australian Capital Territory (No 2) - [2021] ACTSC 135

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Deng v Australian Capital Territory (No 2)
Citation:	[2021] ACTSC 135
Hearing Date:	25 June 2021
DecisionDate:	2 July 2021
Before:	Crowe AJ
Decision:	See [52]
Catchwords:	CIVIL LAW – APPLICATION IN PROCEEDING – Application for stay of proceeding – whether action maintainable against a magistrate in circumstances where relevant order has not been quashed or set aside on appeal – whether power conferred by s 17F of the Magistrates Court Act 1930 (ACT) to stay proceedings against a magistrate is discretionary – factors informing exercise of the discretion
Legislation Cited:	Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 1401, 3556, 3557 Court of Petty Sessions Ordinance (No 2) 1930 (Cth) s 231 Family Violence Act 2016 (ACT) s 112 Human Rights Act 2004 (ACT) ss 18, 21, 30 Legislation Act 2001 (ACT) s 146 Justices Act 1902 (NSW) Magistrates Court Act 1930 (ACT) ss 17A, 17C, 17D, 17E, 17H, 17I, 17J, 17K, 17F, 17H
Cases Cited:	Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 Johnson’s Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 Mitchell v The Queen [1996] HCA 45; 184 CLR 333 Spautz v Butterworth (1996) 41 NSWLR 1 Spautz v Dempsey [1984] 1 NSWLR 449
Parties:	Atem Deng (Plaintiff) The Australian Capital Territory (First Defendant) The Magistrates Court of the Australian Capital Territory (Second Defendant) Her Honour Special Magistrate Margaret Hunter (Third Defendant) His Honour Magistrate Glenn Theakston (Fourth Defendant)
Representation:	Counsel P Tierney (Plaintiff) A Hochroth (Defendants)
Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendants)
File Number:	SC 377 of 2020

CROWE AJ:

Background

On 30 April 2019 the plaintiff appeared before the Magistrates Court in relation to a charge of damaging property not exceeding $5,000. The charge arose from circumstances which engaged the operation of the Family Violence Act 2016 (ACT) (the FVA). This resulted in a deemed application for an interim family violence order under s 112 of the FVA. The charge matter was adjourned. The Court made restraining orders under the FVA. These were expressed to operate “until all related charges are finalised…”. The “related charges” referred to the damage property charge.

After a number of mentions the charge matter came back before the Court on 30 August 2019. On that occasion the plaintiff was convicted and fined $2,000. No order was made in relation to the interim family violence order.

On 23 October 2019 the plaintiff was charged with engaging in conduct which contravened a family violence order. The order referred to was the interim order which had been made on 30 April 2019. The plaintiff was, on 23 October 2019, remanded in custody by Special Magistrate Hunter (the third defendant). The matter was adjourned to 12 November 2019. On 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.

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Details

Case: [2021] ACTSC 135
Decision Date

CaseChat Overview and Summary

This case involved an application by the third and fourth defendants in a proceeding for a stay of the proceeding against them. The plaintiff, Atem Deng, had commenced proceedings against the Australian Capital Territory and the Magistrates Court of the Australian Capital Territory, as well as two Magistrates, seeking various declarations and damages for imprisonment and personal injury. The third and fourth defendants, Special Magistrate Margaret Hunter and Magistrate Glenn Theakston, applied for a stay of the proceeding against them pursuant to section 17F of the Magistrates Court Act 1930 (ACT). The application hinged on the interpretation of sections 17A and 17F of the Act, which deal with actions against magistrates for acts done without or in excess of jurisdiction.

The court considered the submissions of both parties, focusing on the interpretation of sections 17A and 17F. The third and fourth defendants argued that the plaintiff's claims were not maintainable under section 17A(2) of the Act as the relevant remand orders had not been quashed or set aside on appeal, and that section 17F mandated a stay of the proceedings. In contrast, the plaintiff argued that section 17A(2) did not apply to his claims and that section 17F conferred a discretion on the court to decide whether or not to stay the proceedings.

After considering the context and purpose of sections 17A and 17F, the court concluded that the better interpretation of section 17F was that it conferred a discretion on the court. The court further determined that good reasons would have to be advanced to displace the declaration in section 17A(2) that the action was not maintainable. In this case, the court found that staying the proceedings against the third and fourth defendants would simplify the litigation, as resolving the issue of the statutory bar to the proceedings as a preliminary issue was logically preferable. The court also noted that the resolution of the issue as a preliminary matter would not cause undue delay or complexity in the current litigation.

Accordingly, the court ordered that the proceedings against the third and fourth defendants be stayed until further order, and listed the matter for further directions before the Deputy Registrar. The court also reserved the costs of the application in proceeding.

Orders