GJ v AS

Case [2014] ACTSC 189

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

GJ v AS

Medium Neutral Citation:

[2014] ACTSC 189

Hearing Dates:

12 July, 17 October 2013; 17 February 2014

DecisionDate:

11 August 2014

Before:

Penfold J

Decision:

1.   The disqualification application is refused.

2.   The appeal is dismissed as incompetent.

3.   The costs of the appeal are reserved.

4.   The parties have 14 days to file and serve written submissions about costs.

Category:

Principal Judgment

Catchwords:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – Admission of Fresh Evidence – appeal from decision of Magistrates Court refusing personal protection order an appeal by way of rehearing – fresh evidence to be admitted on special grounds.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appealable decision under relevant legislation only against making, amending or revoking or refusal to make, amend or revoke protection order – appeal against dismissal of application for protection order for lack of prosecution – dismissal for lack of prosecution to be treated as discontinuance before final decision made – dismissal for lack of prosecution not an appealeable decision – costs order made in conjunction with dismissal for lack of prosecution not appealable decision – costs order beyond power.

Legislation Cited:

Domestic Violence and Protection Orders Act 2008 (ACT), ss 14, 33, 36, 46(1)(b), 55, 56, 96, 99, 100, 117, 117(1)(b), 117(4), 118, 118(2)(f), 118(2)(n)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 20

Court Procedures Rules 2006 (ACT), rr 4(1), 1110(2), 1110(4),1163, 6251, 5052, 5115, 5115(1), 5115(1)(a), 5115(1)(b)

Domestic Violence and Protection Orders Regulations (2009) ACT, regs 48, 48(1), 69, 70, 93

Explanatory Statement, Domestic Violence and Protection Orders Bill 2008 (ACT)

Explanatory Statement, Protection Orders Bill 2001 (ACT)

Cases Cited:

Allesch v Maunz (2000) 203 CLR 172

CDJ v VAJ (1998) 197 CLR 172
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fox v Percy (2003) 214 CLR 118
Gallo v Dawson (1990) 64 ALJR 458
GJ v AS [2011] ACTSC 119
GJ v AB (Magistrate Cush, 29 April 2010, unpublished)
Grassby v The Queen (1989) 168 CLR 1
House v The King (1936) 55 CLR 499
Lacey v Attorney-General of Queensland (2011) 242 CLR 573
Lane v Lane [2011] ACTSC 53 (unpublished)
Latoudis v Casey (1990) 170 CLR 534

Stollznow v Calvert [1980] 2 NSWLR 749

Texts Cited:

Macquarie Dictionary Online, viewed 17 July 2014

Parties:

GJ ( Appellant)

AS ( Respondent)

Representation:

Counsel:

In person ( Appellant)

SM ( Respondent)

Solicitors:

Self-represented  ( Appellant)

Paul Clough Solicitor ( Respondent)

File Numbers:

SCA 22 of 2012

Publication Restriction:

Yes. Names of parties.          

Decision under appeal: 

Court/Tribunal:  Magistrates Court

Before:  Magistrate Dingwall

Date of Decision:                   8 March 2012

Court File Number:                RO 10/53

Introduction

  1. This is an appeal against a decision made in the Magistrates Court on 8 March 2012. The decision was:

The Application for a Personal Protection Order is dismissed. It is ordered that the Applicant…

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AGLC
GJ v AS [2014] ACTSC 189
Case
[2014] ACTSC 189
Decision Date

CaseChat Overview and Summary

In the case of GJ v AS, the appeal originated from a decision by the Magistrates Court of the Australian Capital Territory, which declined to grant a personal protection order sought by GJ against AS. The appeal was conducted as a rehearing, which allowed the introduction of fresh evidence under specific conditions. GJ's primary contention was that the Magistrates Court had erred in its handling of the case, particularly in relation to the admission of evidence and the presence of AS during the proceedings. GJ argued that the court's failure to ensure AS's presence via an audio link contravened the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Additionally, GJ claimed that the court's refusal to accept fresh evidence was an abuse of discretion.

The court meticulously examined the statutory provisions governing appeals from Magistrates Court decisions concerning personal protection orders. It determined that an appeal was only permissible against the making, amending, revoking, or refusal to make, amend, or revoke of a protection order, as per the relevant legislation. The court further clarified that a dismissal for lack of prosecution should be treated as a discontinuance before a final decision is made, and consequently, such a dismissal is not an appealable decision. Additionally, any costs order issued in conjunction with a dismissal for lack of prosecution is also not an appealable decision, particularly if it exceeds the court's statutory authority.

Upon reviewing the arguments presented, the court found that GJ's interpretation of Section 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) was flawed. The court concluded that the Act does not differentiate between the giving of evidence or submissions and the conduct of a hearing. Moreover, it found no basis to impose a requirement for a represented party to be connected by audio link during the hearing. The court also emphasised that an unrepresented litigant is not entitled to accommodations that may prejudice the other party or to have their claims determined outside the bounds of the law. GJ, being an experienced lawyer, was held to a higher standard in her adherence to legal rulings and her complaints about her unrepresented status.

The court dismissed the disqualification application and ruled the appeal incompetent. It reserved the decision on the costs of the appeal and mandated that the parties file written submissions on costs within 14 days.

Orders

Orders of the court

1. The disqualification application is refused.

2. The appeal is dismissed as incompetent.

3. The costs of the appeal are reserved.

4. The parties have 14 days to file and serve written submissions about costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

However, GJ also made repeated submissions that s 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) permitted evidence or submissions to be given by audio link from other Australian jurisdictions, but did not permit a hearing to be held in such a way, and that there was a failure to comply with that Act if AS, although represented, was not present by audio link. Both these arguments are flawed. Section 20 does not distinguish between the giving of evidence or the making of submissions on the one hand and the conduct of a hearing on the other; there is no basis for reading the Act to say, for instance, that a witness can give some but not all of his or her evidence from another jurisdiction, that some but not all witnesses can give evidence from another jurisdiction, that counsel can make some but not all of his or her submissions by audio link or that some but not all counsel can make submissions from another jurisdiction. Furthermore, there is nothing in the Act to the effect that, even if a party would not be required to be physically present in court during the hearing of a matter in which the party is represented, he or she is nevertheless required to be connected by audio link to everyone participating in the hearing of such a matter by audio link. There is no doubt that an unrepresented litigant is disadvantaged in various ways by that status, including, as GJ pointed out, in having no-one to remain in the courtroom on her behalf if she needs to leave during a hearing (although the same can be said for the many lawyers who these days appear as counsel in less serious matters without any instructor at the table). Most judicial officers accept a level of responsibility for trying to ensure that an unrepresented litigant is not unnecessarily disadvantaged by that status, and is not unfairly taken advantage of by the other party. This approach has underpinned many aspects of the handling of this matter by myself and presumably also by Magistrate Dingwall. However, this approach does not entitle an unrepresented litigant to any particular level of accommodation from the court, it does not mean that such a litigant is entitled to accommodations that prejudice the other party, and it certainly does not mean that such a litigant is entitled to have her claims determined otherwise than in accordance with the law. In Gallo v Dawson (1990) 64 ALJR 458, McHugh J dealt with an application to extend the time in which an appeal could be lodged made by an unrepresented litigant who claimed that she had delayed lodging her appeal until she had done enough research to satisfy herself (wrongly, as it appeared) that her appeal could succeed. His Honour noted at 459 that “Lack of legal knowledge is a misfortune, not a privilege.” Unlike Ms Gallo, GJ is a trained lawyer who has practised for some years. For this reason, presumably, she has felt free not just to make submissions disputing propositions of law put by judicial officers, as is the right of any person appearing in court, but also to reject rulings made by those judicial officers, and to seek to re-argue them repeatedly. Her persistence in disputing and seeking to re-argue legal rulings when it appears to suit her purpose sits ill with her readiness to complain about the difficulties created by her unrepresented status at other convenient times.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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