Giles (a pseudonym) v Stamp (a pseudonym) - [2024] ACTSC 150

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Giles (a pseudonym) v Stamp (a pseudonym)
Citation:	[2024] ACTSC 150
Hearing Date:	12 February 2024
Decision Date:	17 May 2024
Before:	Ainslie-Wallace AJ
Decision:	(1) Appeal is allowed in part. (2) Orders 1 and 2 made in the Magistrates Court on 19 January 2023 are set aside. (3) The parties are to file and serve written submissions to be no more than 10 pages in length on the question of the costs payable by the Appellant within 21 days of these orders.
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against costs order – competency of appeal – whether Special Magistrate exercised discretion in circumstances where it was not appropriate to do so – whether Special Magistrate miscarried exercise of discretion – consideration of evidence before Special Magistrate when making costs order – calculation of professional costs incurred – appeal allowed in part
Legislation Cited:	Personal Violence Act 2016 (ACT) ss 67, 84 Magistrates Court Act 1930 (ACT) ss 256, 274 Court Procedure Rules 2006 (ACT) rr 2000, 2010
Cases Cited:	House v King (1936) 55 CLR 499 Polleycutt v Taylor [2020] ACTSC 158
Parties:	Kendal Giles (a pseudonym) ( Appellant) Kelia Stamp (a pseudonym) ( Respondent)
Representation:	Counsel B Nolan ( Appellant) R Notley ( Respondent)
Solicitors Alexander Rashidi Lawyers ( Appellant) Aulich Criminal Law ( Respondent)
File Number:	SCA 8 of 2023
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 19 January 2023 Case Title: Giles (a pseudonym) v Stamp (a pseudonym) Court File Number: PPO 451 of 2021

AINSLIE-WALLACE AJ:

Introduction

Ms Stamp (the Respondent) and Mr Giles (the Appellant) were work colleagues. It seems that Ms Stamp had cause to make a complaint about Mr Giles’ conduct in the workplace which led Mr Giles to resign, although it appears that it was not at his employer’s insistence. Following this, Mr Giles engaged in conduct which was described by the Special Magistrate as stalking Ms Stamp, her husband, and their two relatively young children. Much of the conduct was admitted to in the hearing before the Special Magistrate on 26 May 2022, although in many instances, Mr Giles said that his presence on the street in which Ms Stamp lived or where she and her family were shopping was coincidental.
On 31 May 2021, the Respondent applied to the ACT Magistrates Court for a Personal Protection Order for herself and her children under the Personal Violence Act 2016 (ACT) (Personal Violence Act). The order was sought for a period of 12 months and identified the Appellant as the person against whom the order was to be made. An Interim Order was made, and on 26 May 2022, after a contested hearing, a final Personal Protection Order was made for a period of 12 months.
On several occasions after the Interim Order was made, the Appellant applied to have the Respondent’s children’s names…

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 Giles (a pseudonym) v Stamp (a pseudonym)

Details

AGLC: Giles (a pseudonym) v Stamp (a pseudonym) [2024] ACTSC 150
Case: [2024] ACTSC 150
Decision Date: 17 May 2024

CaseChat Overview and Summary

In the case of Giles v Stamp, the appellant, Giles, sought to appeal a costs order made by a Special Magistrate under the Personal Violence Act 2014 (ACT). The primary dispute involved the competency of the appeal and whether the Special Magistrate exercised their discretion appropriately when making the costs order. The case was heard in the Supreme Court of the Australian Capital Territory.

The central legal issues before the court were the jurisdiction of the Supreme Court to hear the appeal against the costs order and whether the Special Magistrate miscarried their discretion in making the order. The Respondent argued that the Supreme Court lacked jurisdiction under sections 84 and 256 of the Personal Violence Act and the Magistrates Court Act 1930 (ACT), respectively. In contrast, the Appellant contended that the Supreme Court had jurisdiction to hear the appeal under section 67(5) of the Personal Violence Act and section 274 of the Magistrates Court Act. The Appellant also argued that the Special Magistrate misapprehended the limits and functions of their jurisdiction, making the costs order subject to the supervisory jurisdiction of the Supreme Court.

The court found that the Appellant was correct in asserting that the Supreme Court had jurisdiction to hear the appeal. The court emphasised that the costs order was a judgment debt enforceable in accordance with the rules applying in relation to the civil jurisdiction of the Magistrates Court. The court further noted that the Appellant's contention about the Special Magistrate misapprehending their jurisdiction warranted consideration. The court concluded that the appeal was allowable in part, and the costs orders made by the Special Magistrate were set aside. The court directed the parties to file and serve written submissions on the question of the costs payable by the Appellant within 21 days of the orders.

The court's final orders included allowing the appeal in part, setting aside the orders 1 and 2 made in the Magistrates Court on 19 January 2023, and directing the parties to file and serve written submissions on the question of the costs payable by the Appellant within 21 days of the orders.

Orders

Orders of the court

(1) Appeal is allowed in part.

(2) Orders 1 and 2 made in the Magistrates Court on 19 January 2023 are set aside.

(3) The parties are to file and serve written submissions to be no more than 10 pages in length on the question of the costs payable by the Appellant within 21 days of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Respondent contended that the Supreme Court has no jurisdiction to entertain an Appeal from the costs order made by the learned Special Magistrate. It was argued that the terms of the Personal Violence Act exclude an appeal from the making of a costs order. Counsel for the Respondent referred to s 84 of the Personal Violence Act, which sets out which decisions are appealable. It says:84 Appealable decisionsThe following decisions by the Magistrates Court under this Act are appealable:(a)the making, amending or revoking of a final order;(b)a refusal to make, amend or revoke a final order;(c)a decision mentioned in section 83 made on the review of a consent order. The Respondent further argued that s 256 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) excludes proceedings brought under the Personal Violence Act from cases brought within its civil jurisdiction. The Appellant argued that the Supreme Court has jurisdiction to hear the Appeal by operation of s 67(5) of the Personal Violence Act and s 274 of the Magistrates Court Act. However, principally, the Appellant contended that, whether or not the Supreme Court has power to hear and determine the appeal, the order is subject to the supervisory jurisdiction of the Supreme Court because the learned Special Magistrate misapprehended or perhaps misunderstood the limits and functions of the jurisdiction she was exercising. The Appellant argued that it was therefore open to this Court to make an order in the nature of certiorari quashing the order. It was argued that given the relatively small amount of money in issue, to take this course would reduce the costs of the action. While an order in the nature of certiorari would, if granted, quash the costs order, the issue of the costs in the protection proceedings would have to be remitted to the Magistrates Court for decision according to law. No application seeking judicial review of the decision had been filed and the Respondent opposed any leave being granted to enable the Court to entertain the Appellant’s application for judicial review. In my view, it is unnecessary to consider the detailed and nuanced submissions of the Appellant and Respondent on jurisdictional error because the Appellant is undoubtedly correct in contending that the Supreme Court has the power to hear the Appeal. Section 67 of the Personal Violence Act concerns orders for costs. Relevant to this issue, s 67(5) says, in relation to a costs order made under that section:…(5)The amount stated in the order—(a)is a debt owed by the payee to the other party; and(b)is a judgment debt enforceable in accordance with the rules under the Court Procedures Act 2004 applying in relation to the civil jurisdiction of the Magistrates Court. Rule 2010 of the Court Procedure Rules 2006 (ACT) (Court Procedure Rules) provides the means by which a creditor may apply to the Supreme Court for the enforcement of a Magistrates Court order, referred to as an “enforceable money order”. Rule 2000 defines the following terms:2000 Definitions—pt 2.18In this part:…enforceable money order, of the court, means—(a)a money order of the court; or(b)a money order of another court or tribunal filed or registered, under a territory law or a law of the Commonwealth, in the court for enforcement.……money order means an order of a court or tribunal, or part of an order of a court or tribunal, for the payment to a person (but not into court) of an amount, including an amount for damages, whether or not the amount is or includes an amount for interest or costs.Note 1 Order is defined in the dictionary to include judgment (see also def made).…(Emphasis added.)

Ratio Decidendi

Legal Principle Established

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