GJ v AS
[2014] ACTSC 189
•11 August 2014
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 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
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 pay the Respondent’s costs as assessed or agreed.
Background
In 2005, GJ, who has legal qualifications and has practised as a solicitor, was indirectly involved in a criminal case in New South Wales. Partly as a result of her involvement, certain convictions were overturned and several accused had to be retried. There was some public criticism of the processes that had led to the need for new trials, although it seems that GJ had at all relevant times acted properly and in accordance with her duty as an officer of the court.
AS hosted a website on which a substantial quantity of such criticism was published, including much that was intemperate, unpleasant, vulgar, offensive and arguably threatening. In a decision of the Magistrates Court in 2010 (see [20] below), the material was described as “offensive, boring, childish and moronic”.
GJ has taken various legal steps in response to the material on this website. This particular matter began with an application for a personal protection order (PPO) that she made in the ACT Magistrates Court in early 2010, after discovering the material on AS’s website.
PPOs are available under the Domestic Violence and Protection Orders Act 2008 (ACT) (the DVPO Act). Domestic violence orders are also available under that Act, between people who have been involved in domestic relationships, but there are various differences in the criteria for and circumstances in which the two kinds of orders may be made, and different provisions about the orders themselves.
An interim PPO may be made ex parte (s 33).
The criteria for the issue of a final PPO are set out in s 46 of the Act. That section, as in force at 13 January 2010, is as follows:
46Grounds for making final orders (other than workplace orders)
(1)The Magistrates Court may, on application, make a final order (other than a workplace order) if satisfied that—
(a)the respondent has engaged in domestic violence; or
(b)the respondent—
(i)has engaged in personal violence towards the aggrieved person; and
(ii)may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.
(2)If an interim order has been made on the application and the respondent has objected to the interim order, in making the final order the Magistrates Court must consider the respondent’s objection.
NoteThis section does not apply to consent orders (see s 43 (2) (b)).
“Personal violence” is defined in s 14, as in force at 13 January 2010, as follows:
14What is personal violence?
(1)For this Act (other than for division 6.2), a person’s conduct is personal violence if the person—
(a)causes personal injury to someone (the aggrieved person) or damage to the aggrieved person’s property; or
(b)threatens to cause personal injury to the aggrieved person or damage to the aggrieved person’s property; or
(c)is harassing or offensive to the aggrieved person.
NotePersonal violence, for a workplace—see s 50.
(2)However, a person’s conduct is not personal violence if it is domestic violence.
GJ has represented herself throughout the current proceedings. AS has been represented on a number of occasions but at other times has represented himself. This seems to have reflected a need to minimise his costs of the matter. Although AS is based in Sydney, his legal representatives are based in Brisbane.
From the very beginning it seems that there have been issues between the parties about arrangements for service, with both parties creating difficulties.
GJ has a post office box in the ACT, and an email address, but it seems she does not check either the post office box or her email address regularly, and since she seems to have no home computer, she also has more than the usual obstacles to printing material sent by email. AS has from time to time had an address for service in the ACT, but this has also caused problems – for instance, GJ at one point took exception to the fact that a new ACT address for service provided by AS was only 100 metres away from where one of her daughters lived. One of the solicitors who has represented AS claims not to have an email address although, unlike GJ, he has a fax machine.
Neither party has shown any enthusiasm for the use of registered or other forms of tracked postage, because of the extra costs of those arrangements.
Each party has thus had difficulties in being sure whether material has been received by the other party (or, in relation to AS, by the appropriate member of the group consisting of AS and his occasional legal advisers).
The first Magistrates Court proceedings
Interim PPO
GJ applied for a PPO against AS. On 13 January 2010, an interim PPO was made and the matter was adjourned to 3 March 2010.
Section 36 of the DVPO Act as in force at all relevant times was as follows:
36When interim orders become final orders
(1)This section applies if the Magistrates Court makes an interim order in the absence of a respondent.
NoteFor service of an interim order, see s 64.
(2) If the respondent does not wish to object to the interim order becoming a final order, the respondent may—
(a)fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and
(b)indicate on the endorsement copy that the respondent does not object to the interim order becoming a final order; and
(c)return it to the Magistrates Court before the return date for the application for the final order.
(3)If the respondent acts under subsection (2), the interim order becomes a final order on the day the Magistrates Court receives the endorsement copy.
(4)If the respondent wishes to object to the interim order becoming a final order, the respondent must—
(a)fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and
(b)indicate on the endorsement copy that the respondent objects to the interim order becoming a final order; and
(c)return it to the Magistrates Court at least 7 days before the return date for the application for the final order to which the interim order relates.
(5)If the respondent acts under subsection (4), the Magistrates Court may decide the application.
(6)If the respondent wishes to object to the interim order becoming a final order but does not act under subsection (4), the Magistrates Court may decide the application for the final order only if the respondent—
(a)attends the Magistrates Court on the return date for the application for the final order; and
(b)objects to the interim order becoming a final order; and
(c)satisfies the court that the respondent—
(iii)has a legal disability and did not have a litigation guardian appointed for the proceeding at any time before the endorsement copy was required to be returned under subsection (4) (c); or
(iv)has a reasonable excuse for failing to act under subsection (4).
(v)Examples—par (c) (ii)
1the respondent was injured in a car accident and unable to return the endorsement copy in the time required
2the respondent is from a non-English speaking background and no one was able to interpret the endorsement copy for respondent until after it was required to be returned
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(7)If the interim order does not become a final order under subsection (3) and the application may not be decided by the Magistrates Court under subsection (5) or (6), the Magistrates Court may decide that the interim order becomes a final order at the end of the return date for the application for the final order.
Note See s 46 for the grounds for making final orders (other than workplace orders).
Under s 36(4), a person who wishes to object to the interim order being made final must return a copy of the interim order to the Magistrates Court at least seven days before the return date for the application for a final order.
Failure to indicate objection to final PPO
AS did not return the endorsement copy of the interim order to the Magistrates Court, but appeared in person on the return date, 3 March 2010.
On that day, a registrar of the Magistrates Court purporting to act under r 6251 of the Court Procedures Rules 2006 (ACT) found that AS had a reasonable excuse for failing to lodge the endorsement under s 36(4) (being that he had not read the back of the document, which alerts the recipient to the need to respond to the document as well as appearing on the return date). The registrar adjourned the matter, and extended the interim order, to 6 April 2010.
On 6 April 2010, AS was represented at the hearing, the matter was adjourned to 29 April 2010, and the interim PPO was continued until that date. Orders were made for the exchange of submissions.
Refusal to make PPO final
On 29 April 2010, both parties appeared in person. GJ’s application for a final order was dismissed, and the interim order was discharged. Reasons for decision were read out in court and copies were given to each of the parties (GJ v AB (Magistrate Cush, 29 April 2010, unpublished)).
Supreme Court challenge
GJ appealed to the Supreme Court against the refusal to make a final order. The matter came on for hearing on 8 November 2010 but was adjourned to 23 November 2010, at which point GP was given leave to amend her notice of appeal to encompass the claim that the registrar did not have the power to determine that AS’s excuse for failing to lodge the endorsement was reasonable; it seems that she had only become aware on 21 October 2010, nearly six months after the refusal to make a final order, that AS had failed to lodge the endorsement copy and had been found to have a reasonable excuse for that failure.
On 7 March 2011 Gray J upheld GJ’s claim that the registrar had not had power to find that AS had a reasonable excuse for failing to lodge the endorsement copy. His Honour set aside the orders made by the Magistrate dismissing GJ’s application and discharging the interim order, and remitted the matter to the Magistrates Court to be dealt with according to law. His reasons were published on 28 July 2011 (GJ v AS [2011] ACTSC 119).
The second Magistrates Court proceedings
Failure to indicate objection to final PPO
The matter was next mentioned in the Magistrates Court on 15 March 2011. The registrar made orders for the exchange of submissions in relation to “the section 36 issue” (presumably the question whether AS had a reasonable excuse for failing to complete the endorsement rather than any issue of the registrar’s powers under s 36). The matter was adjourned to 18 April 2011.
On 18 April 2011 the hearing of GJ’s application for a final order began again, before a different Magistrate, Magistrate Dingwall. AS was represented by counsel appearing by telephone.
The Magistrate heard evidence, also taken by telephone, from AS and his solicitor. His Honour found that AS had a reasonable excuse for failing to act under s 36(4), and adjourned the application for the final order to 17 August 2011, ordering GJ to file and serve further and better particulars of the grounds of her application for the PPO by 24 June 2011.
Application for final PPO
Subpoenas and other matters
From shortly before 17 August 2011, and during the adjournment of proceedings between August 2011 and March 2012, there was a lot of procedural activity, all or almost all initiated by GJ.
The matter was mentioned for subpoenas to be issued or dealt with on 10 August 2011, 6 October 2011, 18 October 2011, 8 November 2011 and 10 November 2011.
On 15 November 2011 Magistrate Dingwall dealt with a number of applications that had been made by GJ and made several orders. AS was represented.
GJ submitted that the rules did not permit AS and his lawyers, respectively in Sydney and Brisbane, to appear by telephone, especially if this meant that AS could not hear what his lawyers were saying (see [113] to [119] below).
GJ applied for an order that AS comply with interrogatories and notices to produce which he had not complied with before the hearing began.
GJ made an application for the Magistrate to disqualify himself. This was based on comments by the Magistrate about the possibility of awarding costs; GJ believed that costs could only be awarded in relation to a vexatious application or defence and had apparently inferred that his Honour’s reference to the possibility of awarding costs meant that his Honour had formed the view that her application was vexatious. GJ’s views about the costs power are dealt with at [193] to [204] below.
In anticipation of AS being cross-examined by telephone on 12 December 2011, AS’s counsel sought advance provision of any documents on which GJ wished to cross-examine. GJ objected to this, and his Honour advised AS’s counsel to have all the previously provided documents available to AS. GJ undertook to provide copies of any documents that AS did not already have, no later than two days before the cross-examination.
After hearing submissions, the Magistrate made, and gave reasons for making, the following orders:
(a)the further hearing of the proceedings be in closed court;
(b)AS be relieved from compliance with any outstanding notices to produce or requirements to file affidavit of discovery;
(c)GJ not be permitted to serve any further notices to produce, requests for discovery or subpoenas without the leave of the Court;
(d)the application that the Court obtain transcripts of proceedings on 18 April 2011 and 17 August 2011 be dismissed;
(e)the application for Magistrate Dingwall to disqualify himself be dismissed;
(f)the costs of the applications be reserved;
(g)one of the subpoenas be adjourned to 22 November 2011.
Subpoena issues were subsequently mentioned on 22 November, 29 November and 6 December 2011.
Wednesday 17 August 2011
The hearing began at 10.07am on 17 August 2011 and his Honour indicated that the matter would “start afresh”. GJ, AS and AS’s counsel and solicitor were present in the courtroom.
At the beginning of the hearing, and at different points during it, time was taken up with a variety of procedural or otherwise non-substantive issues, for instance:
(a)whether a person sitting in the back of the court should be allowed to remain (raised by GJ);
(b)whether GJ should be able to call AS’s solicitor to give evidence, what questions she could ask him, and whether she could lead tendency evidence concerning AS;
(c)whether GJ should be allowed to call the solicitor without having made an opening in the case;
(d)how the Magistrate should deal with GJ’s accusations of bias made in emails in relation to earlier orders; and
(e)GJ’s attempts on two occasions during the day to serve documents in another matter on AS after he left the court.
On several occasions GJ complained about what she saw as his Honour’s inadequate consideration of her position as an unrepresented litigant.
His Honour raised the possibility that a settlement could be reached on the basis of undertakings. This led to extensive but ultimately unproductive discussions; GJ considered that the undertaking offered was inadequate and AS’s counsel raised a variety of practical difficulties with the extra material GJ wanted inserted in the undertaking. His Honour noted, however, that the undertaking as offered on behalf of AS was probably better than GJ could expect to get under any order that could be made under the DVPO Act.
Eventually, at 11.50 am, GJ opened her case by calling AS’s solicitor to give evidence. Most of her questions were disallowed, as were those of AS’s counsel in cross-examination.
GJ began giving evidence at 12.13 pm. Her original application for a PPO, and annexures, were exhibited. She sought to tender a number of downloaded website postings, but they were incorporated in affidavits which were not admissible. His Honour took the lunch adjournment early (at 12.32 pm) so that GJ could organise the documents and give them to AS’s counsel in advance, but when the hearing resumed at 2.15 pm she said that she had not done so because she had “had the flu and somebody in [her] block of flats died yesterday and it was a particularly disturbing day”; GJ said that she preferred to tender her documents as she gave her evidence.
Despite then apparently separating the tender documents from the affidavits and collecting them together, GJ refused to put them into chronological order.
It was then suggested that GJ depose to the truth of the matters specified in her particulars so that she could be cross-examined on them. This was done, and GJ was cross-examined.
GJ gave evidence about how she became aware of the internet posts about her, and that when she contacted AS he took down all the posts relating to her. She agreed that particular posts did not name her but asserted that they would be understood as referring to her by people who knew the context of the posts. She conceded that Magistrate Cush had found that there was no likelihood of anything occurring against her by AS, and discussed her original application.
GJ was cross-examined about credit, including about a complaint she had made about the Supreme Court registry giving to AS a copy of a submission that she had filed but not served on him. She was asked about a text message she sent to AS in effect accusing him of trying to intimidate her daughters (one of whom lived very close to a new address for service that had been provided by AS). For a reason that was never clearly explained, GJ had included her own residential address in this message.
GJ was asked to explain how the things that had happened after material had been removed from the relevant website in 2005 were still offensive or harassing. She explained that they were harassing because they were ongoing and were “pretty nasty”. She struggled to find examples of this material in her documents and conceded she had left most of them out but insisted that “they were really harassing”.
GJ complained about the posting by AS of a link to the Facebook page of one of her Facebook “friends”, which included (albeit pixilated) her “avatar” (which in the context of the internet is defined by the Macquarie Dictionary Online, viewed 17 July 2014, as “The representation of a person in virtual reality”). She explained that AS’s posting meant that a person who went to the “friend’s” Facebook page could find her name next to her avatar. Perhaps the Magistrate understood, but it was not clear from the transcript, why this was a problem. It was also not clear whether the information concerned was generally available or only to the Facebook “friends” of GJ’s Facebook “friend”.
Towards 4.00 pm, it became apparent that the hearing would not conclude that day. There was discussion about an adjournment, but because AS and his lawyers had travelled to Canberra for the hearing, the Magistrate, instead of adjourning, stood the matter down briefly so that he could attend a meeting, and the hearing resumed at 4.36 pm.
GJ then tried to tender a transcript, apparently the transcript of the original proceedings before Magistrate Cush, but AS successfully objected to this. GJ then closed her case.
AS then went into evidence. He said that what GJ did was right, even though it was controversial. He had made immature posts but had grown up since then. He removed the offensive posts from 2005 “probably five minutes after [he] got [GJ’s] letter” in 2009.
AS gave evidence in chief as follows:
So apparently the only contact you have with the applicant is via these proceedings?---Correct.
Have you any desire to have any contact with her in the future?---Absolutely not. If I never hear from her again it would be fantastic.
And you will do anything you can - - - ?---Absolutely.
- - - to disable your website in what you can - - - ?---Yes.
- - - to ensure that those posts are never found ever again?---That’s already been done, but yes, I will do whatever necessary.
You’ve offered in your undertaking also to ensure that there won’t be any references to any other proceedings that may or may not be begun against you, is that still your undertaking?---Yes, that is correct, yes. Can I also mention that during the – when we finished this proceedings last time and we were successful and we walked away, there was no protection order, I didn’t go and go blabbing about her on the internet. I was serious about, “I don’t want anything to do with this woman.” So basically I just reported to our community, yes, we were successful, that was it.
The hearing was finally adjourned at 6.06 pm, to resume on 12 December 2011. His Honour reserved costs.
When the matter was adjourned, AS was still in cross-examination, and at his request the Magistrate ordered that the further hearing of the proceedings be conducted by audio link between the court in Canberra, AS’s counsel’s chambers (in a location that was not specified but appears to have been Brisbane), and AS in Sydney. In the course of an earlier discussion about adjournment, his Honour had said “I have seen enough of [AS], to be able to assess his credit now.”
It seems that on 12 December 2011 the Magistrate was unable to deal with the matter that day, and the hearing did not proceed. After further adjournments, it resumed on 8 March 2012.
Thursday 8 March 2012
The adjourned hearing resumed at 10:12 am on 8 March 2012. AS’s counsel SM appeared by telephone from his chambers in Brisbane where AS’s solicitor was also present.
AS’s counsel produced an affidavit and sought to read it but GJ objected on the basis that she had not seen it. It emerged that although the affidavit had been emailed to her, and posted to her, some days previously, she had not taken delivery of the posted hard copy because it was sent to her post office box address for service and she had not had time to collect it. In the course of explaining why she had not collected the material, GJ mentioned that she had been “very ill on Monday, vomiting all day.”
The purpose for which the affidavit was to be read was not clear at that point. Reference was made to allegations against AS’s counsel that were made in some of the annexed documents originating with GJ but later in the day it emerged that the affidavit was to be relied on for an application by AS for GJ’s application to be dismissed as an abuse of process. It is not apparent from the transcript whether any such application had been filed in advance.
The affidavit with annexures apparently consisted of over 800 pages occupying two Lever Arch folders. The annexures were mainly correspondence between GJ and AS’s solicitor, much of it apparently received since the hearing had been adjourned part-heard with AS still in cross-examination. AS’s counsel expressed concern that GJ, a former legal practitioner, had provided that further material knowing that AS was in cross-examination and therefore could not be contacted for instructions about the material. According to counsel, the correspondence detailed among other things allegations that counsel personally had been stalking GJ, and had demonstrated paedophile tendencies because he had in his brief a download from her Facebook page showing as her avatar a picture of her as a child on a beach
GJ declined to withdraw the allegations against counsel His Honour declined to refer the allegations to the New South Wales Legal Services Commission or to the ACT Director of Public Prosecutions, but he did invite counsel to consider whether he was in any way hindered in continuing to act for AS. Counsel advised that he was happy to continue to act.
GJ said that she would refer the matter to the police. AS’s solicitor sought to be heard, and said that he had written to GJ asserting that she was not being stalked by counsel. His Honour told GJ that it was inappropriate to ask questions about such matters in the context of these proceedings.
Counsel for AS then drew his Honour’s attention to an allegation by GJ that the Magistrate was biased. This allegation was made in a letter attached to an email sent on 17 November 2011 (shortly after the 15 November hearing described at [28] to [33] above) and copied to the Registrar of the Magistrates Court and AS’s solicitor. GJ pointed out that she had not, however, made another application for the Magistrate to disqualify himself (since the application mentioned at [31] above) and asserted that raising these allegations at this point amounted to AS “hijacking” the hearing and trying to delay it.
His Honour:
(a)pointed out that AS might be concerned about the possibility that his Honour’s decision, if favourable to AS, would be appealed on the grounds of bias;
(b)indicated that he needed to consider seriously whether he should continue hearing the proceedings;
(c)indicated to GJ that her action in making this complaint to the Registrar and AS was “getting very close to contempt of court”.
GJ said that the whole proceedings had been unfair and should have been heard by a visiting Magistrate, because she had appeared, as a practising solicitor, before the local Magistrates. She repeated that she had not made any disqualification application, but declined to say that she did not consider that the Magistrate was biased. All she agreed to was that she did not want his Honour to disqualify himself, while noting the possibility that there was bias.
His Honour, and AS’s counsel, indicated that this was not a satisfactory approach to an allegation of bias. His Honour told GJ that she had raised an allegation of actual bias and that unless she withdrew that allegation, he did not feel able to continue to hear the matter.
GJ denied that she was claiming actual bias, while repeating her allegations that the Magistrate had been giving “undue assistance” to AS and noting that this would be an appeal point. Later in the hearing she repeated that she was not alleging bias at that point but was in effect saving it up as a possible appeal point.
At this point, around 11.00 am, his Honour offered to adjourn for an hour and a half to give GJ a chance to collect the affidavit from her post office box and for him to consider how to respond to the claims of bias. GJ indicated, at least twice, that she might want to obtain legal advice about the suggestion that she was in contempt of court, but repeated that she was not asking his Honour to disqualify himself.
In response to the proposed adjournment, GJ asserted that the hearing had been hijacked by AS because he hoped to use the argument of the effluxion of time to avoid having an order made against him. She again complained about the use of the audio link and the fact that AS personally had not been listening to the day’s proceedings. His Honour pointed out that AS did not have to be present at a civil hearing if he was represented by counsel. GJ disagreed, and repeated her complaints at several further points during the day. Because she believed that AS should have been listening to the hearing already, GJ objected to his Honour giving leave to AS’s lawyers to telephone him, while he was still in cross-examination, to tell him about the proposed adjournment. His Honour responded by arranging for his associate to make the call.
Despite the undertaking given on 15 November 2011 (at [32] above), GJ had not provided to AS (who was to give his evidence by telephone from Sydney) a set of the documents on which she wished to cross-examine him. In fact on 15 November, his Honour had advised AS to have all previously provided documents available, and GJ had undertaken to give to AS in advance any further documents on which she proposed to cross-examine him. It seemed that neither party had taken any notice of that previous discussion. Despite her undertaking, GJ disputed that she should have to provide the documents in advance, noting that “that just gives notice”. His Honour explained that:
that’s the way civil proceedings are conducted, [GJ]. It’s not a trial by ambush.
At around 11.10 am, his Honour said that he would adjourn until 12.00 noon, and GJ indicated that she was not in fact going to collect the affidavit, because she would lose her parking spot and that would cost her money.
The matter resumed at 12:50 pm. Counsel said that GJ’s allegations of apprehended or actual bias were entirely groundless and AS did not object to his Honour continuing to hear the matter.
GJ sought a short adjournment to think about the issues and properly respond to the affidavit that had been filed, the adjournment being sought on the basis of the late service and her lack of opportunity to read and properly respond to the affidavit. His Honour noted that the affidavit had not yet been admitted.
The Magistrate indicated that he was satisfied that he had no bias towards either of the parties and that all he had done in permitting the use of audio links for the hearing was to take various steps to try to minimise the costs of the hearing.
His Honour then invited GJ to address him about why he should not stay the proceedings as an abuse of process by her. His Honour noted the contents of the affidavit that AS sought to rely on, although without receiving it, and also mentioned GJ’s refusal to provide documents to AS for the purposes of cross-examination by audio link (at [67] above). GJ pointed out that there had been no direction given for her to provide information about the documents she proposed to cross-examine on. His Honour also asked about GJ’s compliance with the earlier direction to provide further and better particulars of her allegations. He noted that GJ’s “conduct of the matter has been less than co-operative”.
GJ complained that the court had not provided a transcript of the earlier proceedings. His Honour pointed out that there was nothing preventing her from obtaining a transcript, to which she replied that there was nothing wrong with AS getting a transcript either.
His Honour then invited GJ to address him about why the 800-odd pages of correspondence initiated by her and annexed to the affidavit that AS had tendered, which his Honour described as “a barrage of communications”, did not amount to an abuse of process by her.
Counsel for AS told his Honour that he would rely on the material in the affidavit for an abuse of process application and an application for costs. His Honour indicated that he was also considering the possibility of dismissing the application as an abuse of process.
AS’s counsel, unsurprisingly, said that he agreed with the proposal to dismiss the matter as an abuse of process, noting that:
the amount of correspondence that has been engaged in by the applicant on a whole host of issues which are irrelevant to the proceeding ... is oppressive, if not vexatious [and that] the proceedings can be characterised ... simply as a stalking horse for two [defamation] actions ... filed in two Supreme Courts.
At about 1.07 pm, GJ left the courtroom without leave, saying that she “had had enough”. The Magistrate dismissed the application and ordered that GJ pay AS’s costs as assessed or agreed, while declining to order indemnity costs.
The final few minutes of the hearing are recorded in the transcript, from the point at which his Honour sought to clarify the significance of the new affidavit tendered on behalf of AS, as follows:
HIS HONOUR: Well, [SM], to what extent do you want to rely on the affidavit at this stage?
...
[SM]: Your Honour, we’ve taken you to the points where we’ve had to rely on it to raise the - - -
[GJ]: So three points out of two folders is what they seek to rely on. Well, I say that, why did they provide this affidavit?
HIS HONOUR: Do you wish to provide, do you wish to rely on it for any other purpose at this stage?
[SM]: Not at this stage, your Honour, but it will certainly, we will rely on it for the foreshadowed abuse-of-process application and also for the application for costs.
[GJ]: So now they’re going to make an application for abuse of process. Well, could we have a directions hearing? And also - - -
HIS HONOUR: [GJ], if you don’t stop interrupting the proceedings, I’ll take some action.
[GJ]: I’m sorry.
HIS HONOUR: No.
[GJ]: The thing is, I forget.
HIS HONOUR: Do you wish - I’ve only raised this as a possible matter, because I’ve been considering over the break the position I’ve been put in. As I said, I feel I can continue to deal with the matter.
[SM]: That’s right.
HIS HONOUR: But I am concerned, having received, seen these two folders, without having examined everything in it, that it might have reached the point where I need to give consideration to, it’s Regulation 66 of the Domestic Violence Protection Orders Regulations 2002. Now, I’m not inviting an application from you, but simply I’m raising it as an issue.
[SM]: Your Honour, that is a - - -
HIS HONOUR: I seem to be reaching a point where I’m - - -
[GJ]: Sorry, what does it say?
HIS HONOUR: - - - finding it almost impossible to finalise these proceedings.
[GJ]: I’m sorry, what does 66 say?
HIS HONOUR: It deals with summary stay or dismissal.
[SM]: Your Honour, we would agree with that course.
HIS HONOUR: On what basis would you put it?
[SM]: Your Honour, the amount of correspondence that has been engaged in by the applicant on a whole host of issues which are irrelevant to the proceeding, your Honour, I would submit - - -
[GJ]: Well, exactly.
[SM]: - - - is oppressive, if not vexatious. Your Honour, what the proceedings can be characterised is simply as a stalking horse for two [defamation] actions - - -
[GJ]: Your Honour, can I interrupt, please?
[SM]: - - - filed in two Supreme Courts - - -
HIS HONOUR: Ms - - -
[GJ]: I’m asking for an adjournment so I can defend myself.
[SM]: - - - Australian Capital Territory - - -
HIS HONOUR: [GJ] - - -
[SM]: This goes on and on.
HIS HONOUR: - - - you keep interrupting. He’s simply making - - -
[GJ]: Yes, well, can I interrupt and can I get an adjournment?
HIS HONOUR: I’ve invited him to make some submissions to me.
[GJ]: Well.
[SM]: I remember on the last occasion whilst my client was in cross-examination by the applicant, [AS] made the point that he wanted nothing to do with this applicant today, and her immediate response to him was, “Well, that’s not going to happen, because I’m going to sue you.” Your Honour, this is an abuse of process, given that the matters which have been raised in respect to the posts are now being litigated in two other proceedings - - -
[GJ]: Sorry, I’m leaving. I’m sorry. I’ve had enough.
[SM]: - - - in two other Supreme Courts.
[GJ]: I’m so sorry. I have had enough of this.
[SM]: Your Honour, it can only be characterised as an abuse of process, as a vexatious and now which is also oppressive. Your Honour, I really can’t take the matter any further. Your Honour, she’s simply attempting to almost litigate the matter for the purposes of the two other matters, which are on the other courts. Your Honour, that’s what the interlocutory applications in respect of the subpoenas in this court were about. That’s what the interlocutory application for further particulars was about. That’s what the voluminous interrogatories were all about. She is using this proceeding, as I said, your Honour, as a mere stalking horse for the other two proceedings which she has commenced against my client. Your Honour, you’ll see the voluminous correspondence that she has engaged in. In all those, she is actually, she is using the correspondence as a means of attempting to solicit, attempting to fish, and attempting to discover just who are the possible other parties that she wants to sue in other proceedings.
And she makes allegations against every one. Your Honour, she has made allegations of bias against your Honour on at least two or three occasions. There’s been a further allegation this morning which we’ve had to raise. There was the interlocutory application for bias. There are numerous allegations of bias against the registry of this court. She is alleging that the registry in communicating with us on various matters are showing bias or are providing assistance to the court. She has alleged all sorts of malefactions against both Mr Earl and now also against myself.
Your Honour, this proceeding can be characterised as nothing other than an abuse of process, given that proceedings are now on foot for exactly the same posts. As I said before, your Honour, in two other Supreme Courts of Australia, both in the Australian Capital Territory and also the Supreme Court of New South Wales, your Honour will remember that much of the morning, apart from attempting to offer(?) [GJ] undertakings, which your Honour quite properly observed were more than you could possibly order in her favour, were rejected, but also part of the morning was taken up with continued attempts by [GJ] to serve proceedings against [AS] in the Supreme Court of the ACT. By having him there, by bringing him to Canberra, she attempted to effect service upon him.
Your Honour, that’s simply another example of how oppressive and how vexatious the matter is. Your Honour, we’ve already, she’s already intimated that whatever proceeds out of this matter today, what has occurred on the hearing on 7 August, and the interlocutory application, she will, whatever happens today, she will appeal. Whatever happens today, she will appeal against your Honour’s decision, which will effectively render any effect of any proceeding here today simply nugatory.
HIS HONOUR: But that’s her entitlement, isn’t it, to appeal? All right, well, I’m not sure if you heard, but [GJ] has left the courtroom.
[SM]: I haven’t, your Honour.
HIS HONOUR: Some five minutes ago.
[SM]: Your Honour, may I ask why?
HIS HONOUR: Well, I think she said she couldn’t take any more of it.
[SM]: Your Honour, then I seek a non-suit. I apply for the application to be dismissed with costs and with costs to be assessed on a scale that are on an indemnity basis. That’s my submission. If she is not going to remain at the Bar table to prosecute the matter, then that has to be my, yes, that has to be my application, that your Honour dismiss the application and that you order costs.
HIS HONOUR: She had asked for an adjournment before she left.
[SM]: Before she left?
HIS HONOUR: Yes, and I hadn’t yet dealt with that application. But nevertheless, by leaving she appears to have withdrawn that application, and - - -
[SM]: That’s quite so, your Honour. Your Honour, if she’s left the Bar table, if she’s left the court, then that has to be my submission. Your Honour, she has refused to read the affidavit. She has refused to collect it. And now she - - -
HIS HONOUR: There may be some problems in collecting it in that it’s been left at the post office and she needs to go and pick it up.
[SM]: Your Honour, it was emailed to her. We gave her a week’s notice before today that it has been sent to her. So she’s had it effectively for a week. So your Honour, I renew my application that, given that she has withdrawn from the matter, that the application be dismissed, with costs. As a former solicitor, she should be aware of that conduct.
HIS HONOUR: My inclination at the moment is to reserve the question of costs and give her the opportunity to be heard on that. I would think that she has clearly established that your client did engage in offensive behaviour. The issue really was whether, or is, whether - - -
[SM]: There is any likelihood - - -
HIS HONOUR: - - - any likelihood of continuing to engage in that conduct.
[SM]: There is absolutely none.
HIS HONOUR: But to an extent, she succeeded, she would have succeeded, it seems to me, on part of her application.
[SM]: How so, your Honour? That’s in part.
HIS HONOUR: Yes, in part.
[SM]: But your Honour, your Honour may have found that there are offensive posts on a website run by him in 2000 and, very early 2010, but - - -
HIS HONOUR: And posted by him.
[SM]: Well, that’s correct, but for two years, there has been no contact with the applicant and positive steps to avoid it. He’s done everything within his power to ensure that nothing on his website refers to her by name or otherwise. Yes, even by others. He’s done all he can. Your Honour, the likelihood test is met in that there is no chance whatsoever, and he has given that evidence, that he wants nothing more to do with this applicant, and yet she is the one who is continuing the process against him. Your Honour, she may have remedies in other courts, but it is not - - -
HIS HONOUR: Yes, all right, well, thank you.
[SM]: - - - she should not have the comfort of this order, given that two years have passed since those posts were made, and since he made the attempts to ensure that there were no more posts about her. Your Honour, [GJ] talks about the effluxion of time, but your Honour, that is something which cuts both ways. But justice delayed is justice denied. Proceedings have continued for over two years, until anything has been resolved. We’re still waiting today to see what she does. She’s walked out of court. She’s ignored your Honour’s intimation to provide our client with any documents which may assist in her cross-examination. She has made allegation after allegation against numerous people. Your Honour, there can be no other characterisation of the matter then that it’s an abuse of process.
Your Honour, I am deeply concerned about making this submission to the court, and your Honour, we are concerned in making it, that there’s no medical evidence before the court to suggest it, to back this up. The suggestion is that she may have some type of illness which prompts her to continue this action.
HIS HONOUR: Well, I won’t comment on that.
[SM]: I know, your Honour - - -
HIS HONOUR: At this stage, I’ll simply note that the applicant left the courtroom without leave at about 1.07 pm today. I was in the process of giving her notice that I would, was giving some consideration to dealing with the matter by way of a stay on the grounds of abuse of process. She indicated she wished an adjournment in any event. I was then seeking to get some submissions from [SM] as to whether he had any view on the issue of abuse of process. During that course, the applicant left the courtroom without any leave, as I say, giving no intimation of what her intentions were in respect of the matter. I can only infer from her leaving the courtroom the way she did that she doesn’t pursue her application.
I hope I’ve done my very best to try and ensure a fair hearing for both sides, and trying to make sure that the costs of the proceedings were not unnecessarily increased, and by doing so, I’ve made, given various directions concerning particularly the taking of evidence by audio link, and the engagement of [SM] on behalf of the respondent by way of telephone, by audio link.
The defendant, the respondent - I withdraw that. The applicant has continuously challenged that, my direction in that regard. She has, the proceedings have been punctuated by outbursts from her from time to time, interruptions of both myself and counsel for the respondent whilst he was trying to make submissions, and as I say, constant challenge to rulings I’ve made, particularly in relation to taking evidence by audio link.
But finally, by leaving the courtroom, I can only infer that she no longer wishes to pursue the matter. There is an application for costs on an indemnity basis. I wouldn’t be prepared to go to an indemnity basis. There’s some doubts as to whether this court has that power in any event.
But I can see no basis, given that the applicant has now left the courtroom and by that means indicated to me she doesn’t pursue the matter, I see, very difficult to see how the any resistance could be made to an order for costs in favour of the respondent.
In the circumstances, the application is dismissed. I order the applicant pay the respondent’s costs as assessed or agreed.
Yes, thank you, [SM].
[SM]: Your Honour, thank you …(inaudible)…
HIS HONOUR: Yes, good afternoon - have you hung up?
He’s gone. (emphasis added)
GJ claimed that, although it is not recorded in the transcripts, the audio recording of the hearing includes, after the transcribed material, the Magistrate saying:
I doubt we’ve heard the last of it.
Notice of appeal
On 27 March 2012, GJ lodged a notice of appeal against the dismissal of her application, and the costs order. The notice indicated a wish to put further evidence before the court.
There were originally three grounds of appeal, with three particulars of the denial of procedural fairness specified in the second appeal ground.
On 31 May 2012 GJ lodged an amended notice of appeal which added two further grounds of appeal and 13 further particulars of appeal ground (II).
On 14 August 2012 a second amended notice of appeal was sealed in the Supreme Court. In this notice, the second appeal ground had 26 particulars, and there were in total 15 grounds of appeal, as follows:
(I)The learned Magistrate erred in that he did not have the power to make the Order ‘The applicant to pay the respondent’s costs as assessed or agreed’.
(II)The applicant was denied procedural fairness including by the following:
(a)The Court, in breach of Regulation 31 of the Domestic Violence and Protection Orders Regulation 2009, allowed the respondent to rely on an affidavit that was, inter alia, not served in sufficient time before the hearing to allow the appellant to make and file and serve a copy of, an affidavit in reply. At the beginning of a hearing the court expected the unrepresented applicant victim to make submissions on the spot in relation to matters of which she had insufficient notice and in relation to an affidavit she had not had an opportunity to read due to the respondent’s failure to comply with legislation. In effect the unrepresented applicant victim was not given sufficient or adequate notice of allegations specified in sufficient detail to adequately prepare a reply and did not have a reasonable opportunity of adequate refutation.
(b)The learned Magistrate unreasonably failed to adjourn the proceedings and unreasonably and unjustly dismissed the application.
(c)The learned Magistrate failed to give sufficient regard to the unrepresented status of the applicant especially, for example, in relation to the difficulty that re-examination posed for the unrepresented applicant victim.
(d)The learned Magistrate showed bias toward the applicant and failed to disqualify himself and made comments that suggested he had prejudged the matter.
(e)The learned Magistrate provided undue assistance to the respondent and his legal representatives during the course of the proceedings.
(f)The learned Magistrate admitted irrelevant evidence and failed to admit relevant evidence. The learned Magistrate admitted hearsay evidence from the respondent.
(g)The learned Magistrate failed to provide adequate assistance to the unrepresented applicant victim during the hearing and allowed her to be cross-examined in a manner which constituted badgering. The learned Magistrate allowed the respondent’s barrister to make submissions about allegations that went to credit of which the applicant had insufficient notice and which were irrelevant and highly prejudicial and not probative of any fact in issue.
(h)The learned Magistrate allowed a hearing to take place by audio link contrary to legislation and despite the applicant’s strong objections. A hearing conducted in this manner would make cross-examination regarding documents very difficult unless the person being cross-examined was provided with prior notice of every document the person was to be asked about. The appellant says a hearing conducted in this manner was unfair and prejudicial to the applicant’s interests.
(i)The learned Magistrate was going to allow the hearing on 8th March 2012 to proceed by audio link and allow the respondent to give evidence by audio link from his work or home environment where he would have access to a computer and a telephone.
(j)The learned Magistrate allowed a hearing (S 36 application) to take place in contravention of legislation and during which the respondent had access to the internet and allowed the respondent’s legal representatives to send emails to the respondent (which the applicant and the court were not privy to) whilst the respondent was under cross-examination.
(k)The learned Magistrate failed to take any action against the respondent for sub judice contempt despite being aware of the sub judice contempt.
(l)The learned Magistrate failed to obtain a copy of the transcript of the hearing of 17th August 2011 and the hearing of the S 36 application. This was despite the applicant’s requests and submissions it would greatly assist the unrepresented applicant and overcome difficulties caused by the lengthy time lapse between hearing dates as well as adjournments apparently caused by the Magistrate’s illness and [SM]’s need for an adjournment due to a prior commitment.
(m)The learned Magistrate failed to allow the appeal book to be admitted into evidence.
(n)The learned Magistrate failed to provide adequate case management of the proceedings and conducted the proceedings in a manner which assisted the respondent to delay proceedings in pursuit of his attempt to use a defence of ‘effluxion of time’.
(o)The learned Magistrate admitted evidence that constituted a defence even though the respondent had not filed a defence.
(p)The learned Magistrate made Orders about the conduct of the proceedings only in relation to the applicant and failed to make Orders about the respondent’s conduct of the proceedings and as such gave undue and unfair assistance to the respondent.
(q)The learned Magistrate put the unrepresented applicant victim under unreasonable pressure on the day of the hearing on 17th August 2011 and also on 8th March 2012 in relation to providing the respondent with documents she sought to cross-examine the respondent about.
(r)The learned Magistrate allowed the respondent’s barrister to ask leading questions especially in examination in chief of the respondent on 17th August 2011.
(s)There was an undue delay in hearing the matter.
(t)The unrepresented applicant victim was not given the opportunity to state her case adequately or to correct and contradict statements prejudicial to her case.
(u)The victim was not given adequate time and a fair and helpful way in which to cross-examine the respondent.
(v)The learned Magistrate allowed the respondent’s barrister to give evidence from the bar table.
(w)The learned Magistrate excessively interrupted the unrepresented applicant victim especially during cross-examination of the respondent and excessively interfered in examination of witnesses and the proceedings in general in relation to accusations made in relation to the applicant.
(x)The learned Magistrate failed to hear objections made by the unrepresented applicant victim.
(y)The learned Magistrate failed to properly hear the applicant’s Notice of Motion that was filed in order to ensure the respondent complied with the applicant’s Notices to Produce and interrogatories and as such gave the respondent’s an unfair advantage in that it limited and prevented the applicant’s right to discovery.
(z)The Learned Magistrate failed to control the proceedings in that he allowed the respondent’s barrister to make inappropriate threats toward and allegations about the unrepresented applicant victim during the proceedings and on a day that the matter was set down for hearing.
(III)The learned Magistrate erred in that he took into account irrelevant matters, including an affidavit served on the unrepresented applicant victim the day before the hearing and took into account submissions by the respondent’s barrister in relation to allegations relating to credit of which the victim had inadequate notice. The learned Magistrate erred in failing to admit relevant evidence including the appeal book and the transcript of the hearing on 6th April 2010.
(IV)The learned Magistrate erred in finding that the respondent’s excuse for failing to lodge the endorsement was reasonable.
(V)The respondent should not be entitled to costs as he does not come before the Court with ‘clean hands’ having engaged in sub judice contempt during the course of the proceedings and he ‘ambushed’ the applicant on the eve of the hearing. The respondent used the proceedings by engaging in sub judice contempt to raise funds to pay for legal expenses and to pressure and intimidate the unrepresented applicant victim. This conduct implicated the respondent’s firm of lawyers. The respondent’s barrister made false and misleading representations to the court in order to obtain a benefit for himself, his instructing solicitor and the respondent.
(VI)The learned Magistrate failed to exercise its discretion or in the alternative the Court erred in the exercise of its discretion.
(VII)The learned Magistrate made an incorrect finding of fact when that finding was based on an absence of evidence.
(VIII)Further or in the alternative to (vii), the learned Magistrate erred in that its reasoning was illogical in that it was based on an absence of evidence and not based on facts or inferences of fact supported by logical grounds.
(IX)The learned Magistrate erred by admitting evidence that was unfair and highly prejudicial.
(X)The learned Magistrate erred by admitting evidence which went solely to the credit of the unrepresented applicant victim and which was irrelevant to any fact in issue and was unfair and prejudicial to the applicant and which did not have any probative value.
(XI)The learned Magistrate erred in that he failed to give any or sufficient weight or effect to S 7 (1) (b) of the Domestic Violence and Protection Orders Act, 2008 (The Act’).
(XII)The learned Magistrate erred in applying a test of likelihood of future violence.
(XIII)The learned Magistrate erred in excluding particular No. 102.
(XIV)The learned Magistrate erred in his discretion by making a cost’s order.
(XV)The learned Magistrate erred in his discretion by failing to adjourn the hearing on the 8th March 2012.
In written submissions filed on 11 December 2012, GJ appeared to abandon a number of these appeal grounds; no submissions were made about grounds (III), (VI), (VII), (VIII), (IX), (X), (XIV) or (XV).
In the second amended notice of appeal, GJ sought the following orders:
i. That for a period of two years the respondent is prohibited from:
(a) Contacting the aggrieved person including through a third party other than a legal practitioner or another approved party such as a mediator.
(b) Engaging in offensive conduct towards the aggrieved person including via posts on the internet.
(c) Harassing, threatening, insulting or intimidating the aggrieved person including via posts on the internet.
(d) Damaging or interfering with the aggrieved person's property.
(e) Approaching within 10 metres of the aggrieved person except at Court proceedings directly involving the respondent.
ii.The Order that the applicant pay the respondent's costs as assessed or agreed is set aside.
iii. An Order for costs in favour of the appellant.
Under s 56 of the DVPO Act, a PPO operates for a maximum period of one year (a domestic violence order may be made for two years: DVPO Act s 55). A two-year order as sought by GJ could not be made in this case irrespective of my conclusions on the appeal.
Furthermore, since the respondent’s case was not completed at the point when GJ left the courtroom and the application was dismissed, this is not a case in which, even if GJ’s appeal were upheld, I would consider making an order for a final PPO myself.
Notice of contention
As well as indicating an intention to defend the appeal, AS also filed a Notice of Contention, and a revised Notice of Contention was filed on 2 October 2013. It is dealt with at [205] to [209] below.
Appeal processes
The appeal was listed in my callover on 26 October 2012. Orders were made for the exchange of submissions. GJ was directed that her submissions had to:
(a)use the various grounds of appeal as headings;
(b)identify the errors said to have been made by the Magistrate;
(c)refer to relevant pages of the appeal book;
(d)specify relevant authorities; and
(e)identify any fresh evidence to be tendered.
Written instructions for submissions were subsequently provided to the parties, and the matter was listed for mention on 12 February 2013.
On 4 December 2012 I extended some of the deadlines by orders in Chambers.
On 25 January 2013 I made orders in Chambers for the method by which submissions were to be served, and noted:
3. The Court will have regard only to applications, submissions and other documents provided by a party that are communicated to the Court by filing in the normal way, or to the other party by service in the normal way; in particular the Court will not consider emails to the Court making complaints, allegations or any other comments about the other party.
On 12 February 2013 the matter was listed for hearing on 12 July 2013. Orders were made for exchange of affidavits, further submissions, and objections to affidavits.
On 14 June 2013, as a result of “the amount of material that has been received and the issues that have been raised since the matter was listed for hearing”, the parties were advised by email that the listed hearing date (12 July 2013) would be used for an extended directions hearing about the nature of the appeal.
The directions hearing
At the 12 July 2013 directions hearing:
(a)detailed orders were made about service, which had been a constant source of conflict between the parties;
(b)orders were made for the filing of an amended Notice of Contention and for further submissions to be exchanged; and
(c)the matter was adjourned to 17 October 2013 for hearing.
As well, I heard lengthy argument from GJ about the nature of the appeal. She insisted that the appeal was a rehearing but that this required me to hear all the evidence again and make a new decision.
Sections 99 and 100 of the DVPO Act are as follows:
99Evidence on appeal
In an appeal, the Supreme Court must consider the evidence given in the proceeding from which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.
100Powers of Supreme Court on appeal
On an appeal, the Supreme Court may—
(a)confirm, reverse or amend the decision or order appealed from; or
(b)make the decision or order that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c)set aside the decision or order appealed from, completely or partly, and remit the proceedings to the Magistrates Court for further hearing, subject to the directions the Supreme Court considers appropriate.
Having regard to those provisions, I agreed with GJ’s submission that the appeal would be a rehearing, but not with her assertions about what “rehearing” signified.
To the extent that GJ attempted to support her assertions, she seemed to rely on the plain meaning of the word “rehearing” – and one could not criticise a lay person, operating without the help of the pronouncements of the superior courts, for interpreting “rehearing” as describing a second full hearing. On the other hand, GJ as an experienced legal practitioner had little excuse for not understanding the legal significance of “rehearing”, and no excuse for refusing (subject always to her appeal rights) to accept a judicial determination explained by references to relevant legislation and authorities.
At the end of the directions hearing I made orders about how the substantive appeal hearing would proceed. Those orders were to the effect that the appeal would be conducted, as a rehearing, by reference to:
(a)the evidence that was before Magistrate Dingwall;
(b)the arguments and submissions made before Magistrate Dingwall; and
(c)the progress of the hearing before Magistrate Dingwall.
In that rehearing, I noted, the receipt of further evidence about questions of fact would be at my discretion (DVPO Act, s 99), and would be permitted “on special grounds” (CPR 5052).
As already indicated, GJ did not agree with my conclusions and orders, and repeatedly sought to re-open those orders in subsequent mentions and at the appeal hearing. For that reason, I note here the comments of Gleeson CJ, Gummow and Kirby J in Fox v Percy (2003) 214 CLR 118, as follows:
20. Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word "rehearing". The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term "appeal", or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.
...
22. The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
23. The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (citations omitted) (emphasis added)
The explanation of a rehearing in Allesch v Maunz (2000) 203 CLR 172, referred to in Fox v Percy above, has been repeated from time to time, recently in Lacey v Attorney-General of Queensland (2011) 242 CLR 573, where the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:
57.Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are:
1.Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.
2.Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.
3.Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.
58. Where the court is confined to the materials before the judge at first instance, that is ordinarily indicative of an appeal by way of rehearing, which would require demonstration of some error on the part of the primary judge before the powers of the court to set aside the primary judge's decision were enlivened.
In summary, an appeal in which the appeal court is required to have regard to the evidence at first instance, may draw inferences of fact, and may, in its discretion, receive further evidence, is an appeal by way of rehearing. The power to receive further evidence distinguishes the appeal from an appeal “in the strict sense”. The requirement to rely on the evidence at first instance and any new evidence admitted in the court’s discretion distinguishes the appeal by way of rehearing from an appeal de novo.
I cannot see any basis for GJ’s repeated claims that the appeal to the Supreme Court is intended to be an appeal de novo.
The consequence of my conclusion that this appeal is by way of rehearing is that, as stated in Allesch v Maunz at [23] (see also Lacey v Attorney-General of Queensland) (at [57.3]), my powers are only exercisable if GJ can demonstrate that:
having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.
In some cases, the “legal, factual or discretionary error” may be unidentifiable but may be able to be inferred from the fact that “a substantial wrong has in fact occurred” (House v The King (1936) 55 CLR 499 at 505, quoted at [165] below).
Lane v Lane [2011] ACTSC 53, an apparently unpublished decision of Refshauge J, at [14] adopts an equivalent approach to an appeal against the making of a protection order under the Domestic Violence and Protection Orders Act 2001 (ACT), which contained similar provisions to the DVPO Act in relation to appeals.
Given GJ’s repeated complaints about what she saw as my unduly restrictive approach to the admission of further evidence on appeal, I note also the comments of the High Court in CDJ v VAJ (1998) 197 CLR 172 at [111] (referred to in Allesch v Maunz, and also repeatedly by GJ), about the admission of further evidence on appeal, as follows:
Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a “trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence”. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
The appeal hearing
The appeal was heard on 17 October 2013. Like the hearing before the Magistrate, it was not a particularly structured hearing.
Apart from the substantive issues in the appeal, the following matters were canvassed:
(a)the nature of the appeal (by way of attempts to re-open decisions made at the directions hearing in July 2013, which I declined to hear);
(b)whether AS or his lawyers should have been permitted to appear by telephone at any point, as had been done from time to time by both the Magistrate and by me (see [113] to [119] below);
(c)the fact that on more than one occasion during the Magistrates Court proceedings, AS had offered an undertaking in settlement of the proceedings, which had been refused by GJ despite the Magistrate’s advice that it was a better undertaking than could have been given by a court in making a PPO (at [38] above);
(d)whether the Magistrate had made adequate allowances for GJ’s position as an unrepresented litigant (see [120] to [124] below);
(e)GJ’s failure to comply with her undertaking to provide relevant documents to AS in advance of his cross-examination (see [125] to [127] below).
The substantive issues on which submissions were made were:
(a)which power his Honour had exercised in dismissing GJ’s application for a PPO (see [128] to [150] below);
(b)whether the dismissal was an appealable decision (see [151] to [154] below);
(c)if so, whether his Honour had erred in his exercise of the relevant power (see [163] to [192] below); and
(d)whether the costs order was made in error (see [193] to [210] below).
Use of audio link for hearings
GJ made repeated complaints, both in the Magistrates Court and before me, about the making of orders permitting AS to appear from Sydney, or to be represented from Brisbane, by telephone.
The orders were made, by both the Magistrate and by me, in the interests of minimising the costs of the proceedings. I was conscious of the facts that GJ was legally trained but AS was not, and that GJ was based in Canberra while AS was based in Sydney and his lawyers were based in Brisbane, and that AS should not be unnecessarily disadvantaged by the costs of arranging legal representation in Canberra. Furthermore, given that the subject matter of GJ’s original application was an assertion that she needed a PPO against AS, it seemed that unless there was a particular need to require GJ and AS to be physically present in the same courtroom, allowing the parties to conduct the proceedings from different locations had some benefits.
GJ’s complaints included claims that these arrangements made it more difficult for her to hear what was being said by or on behalf of AS, and an objection to being asked to provide to AS in advance documents on which she proposed to cross-examine him (at [67] above), neither of which seem to me to be relevant to the matters to be determined on appeal.
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.
Treatment of GJ as unrepresented litigant
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.
My assessment is that his Honour, in very difficult circumstances, went well beyond what was required of him in attempting to ensure that GJ was given every opportunity to canvass any genuine concerns and make out any claims that could possibly entitle her to any form of relief.
Provision of documents to AS
As noted at [67] above, when the Magistrates Court hearing was adjourned while AS was in cross-examination, and his Honour had ordered that AS could give the remainder of his evidence by audio link from Sydney, GJ had undertaken to give to AS in advance of any documents not previously provided on which she proposed to cross-examine him.
Before me, GJ claimed to have been released from the undertaking she gave the Magistrate to provide documents to AS before he was cross-examined. She had achieved this, she said, by objecting to the undertaking, not during the hearing but in subsequent letters to the Magistrates Court and to AS. She conceded that she had reneged on her undertaking, explaining that she had done so because she had decided it wasn’t fair.
I note that despite her claim to have written to the Magistrates Court and to AS about this matter, GJ did not mention her belief that she had released herself from her undertaking when the matter was raised by his Honour on the last day of hearing when cross-examination of AS was about to resume.
The power exercised in dismissing GJ’s application
As well as a refusal of the application on its merits, there are three other possible bases for a decision to dismiss an application for a PPO.
Section 118 confers power to make regulations dealing with, among other things, “discontinuance and withdrawal of proceedings” (s 118(2)(f)).
I am concerned that the Applicant in the past has stated to various Courts that she lacks the financial capacity to pay any costs orders made against her. In that light, I am loath to have my client incur further avoidable costs that may ultimately be unrecoverable.
If the Presiding Judge is of the opinion that the physical presence of [SM] and/or myself is necessary for justice to be done, I would ask that the Applicant be ordered to give an undertaking to meet the unavoidable costs of travel to Canberra for what may be a very short hearing.
It is envisaged that directions will be made for the further conduct of the matter including listing the matter for hearing. [SM] and I will have our diaries available in his chambers so that availability will not be an issue.
I note that the Court previously has highlighted that the matter is to proceed by way of rehearing. It is my understanding that the matter was determined previously and is in conformance with Lane v Lane & Anor [2011] ACTSC 53. Submissions for my client reflect that the matter is by way of rehearing.
I would ask that consideration be given to the formal review of the full affidavit of Mr Earle filed in the Magistrates Court. We notice that a more recent affidavit of Mr Earle extracts the relevant correspondence that was referred to during the Magistrates Court hearing and is probably sufficient to assist the Appeal Court in reviewing the documents that were considered relevant during the Magistrates Court hearing. We also bring to the presiding Judge’s attention that the full affidavit of Mr Earle not admitted to evidence by the Magistrate on the basis of relevance. If the appeal proceeds by way of rehearing there may be a need to significantly edit the material filed by the Applicant for the appeal.
More to the point of the directions hearing, that the contents of the Applicant’s various affidavits given leave to file by the Magistrate do not appear to address the issues relevant to the appeal by way of rehearing. The contents have been objected to by my client in a document filed with the Court on under the heading “Objection to Affidavits”.
On a more personal note, it is not readily apparent what role [SM] would provide in assisting the court at the directions hearing that cannot be done by telephone. Therefore I request that [SM] attend the directions hearing by telephone.
Although the letter did include some commentary about the law applicable to the appeal, a request concerning an affidavit made by Mr Earle (one of AS’s lawyers), and a general reference to objections to GJ’s affidavits, it was dealt with in my chambers solely as a request about the procedural arrangements for the forthcoming directions hearing.
Initially my associate replied to AS at his email address, copied to GJ at her email address, to the effect that, since AS’s counsel still advertised himself as a lawyer with a presence in Canberra, and the hearing was listed for 2.00 pm on the relevant day, the court did require one of AS's legal representatives to be present in Canberra.
This reply was based on the misconception that counsel who was representing AS was the person of the same name who practised in the ACT; once this mistake was pointed out, my associate sent a further reply, early on 11 July 2013, also copied to GJ, as follows:
Her Honour has set aside Friday afternoon for an extended directions hearing to settle all procedural aspects of the appeal, with a view to ensuring that the actual hearing of the appeal can be conducted efficiently and relatively briefly. She is not persuaded that such a directions hearing, which may involve not just legal argument about the nature of the appeal and the course of the substantive hearing but the resolution of exactly what evidence is to be before her Honour, will be a sensible use of her time if the respondent’s legal representatives are only available by telephone.
If there is a particular reason why those representatives cannot be in court tomorrow but would be able to appear at another time for the necessary directions hearing, then her Honour would agree to adjourn the matter to such a time, but only with the consent of the appellant. Failing that, the directions hearing will go ahead tomorrow at 2pm, on the basis that anyone who wishes to be heard will be physically present in court.
GJ seeks to contrast the fact that Mr Clough’s letter was responded to (despite the fact that she had not actually received a copy of it at the point when my associate replied to it) with my associate's replies to various emails received from GJ that she had not copied to AS or his representatives. For instance, on 17 July 2013 my associate responded to an email from GJ that, although showing (by use of a “cc” notation in the text) that it had been copied to AS’s lawyers, did not include either AS or any of his lawyers as addressees of the email. That response was to email GJ as follows:
As emailed previously, her honour will not be considering any email material that is not also copied to [AS’s] email address.
GJ submitted that my approach to PC’s letter would suggest that I had an attitude to one party that I did not have towards another party and that:
the incident of the letter is one example of why I say a fair-minded observer would say that your honour would not bring an impartial mind to the questions to be determined.
It is apparent from the email sent to AS (and GJ) in response to Mr Clough’s letter (quoted at [234] above):
(a)that nothing except Mr Clough’s procedural request was addressed;
(b)that neither Mr Clough’s request for AS to be represented by telephone nor his alternative request for GJ to be required to meet the lawyers’ travel costs to Canberra was acceded to; and
(c)that the response was sent to both AS and GJ by the same email (the only form of speedy communication for which the court had an “address” for both parties).
Refusal to accept further submissions after directions hearing
At the end of the 12 July directions hearing, I had made orders about the provision of further material for the purposes of the appeal hearing. GJ, without having been given or even having sought leave, sent further substantial submissions, not covered by those orders, about the procedural matters already addressed at length and the subject of rulings, at that directions hearing. I refused to accept them. GJ’s second complaint of bias was as follows (para [8]):
An email from Justice Penfold’s associate of 10th September 2013 stated, into alia, “This material has not been filed pursuant to the orders made by her honour on the last occasion this matter was before the court and will not be considered in the determination of this appeal.”
The material that GJ sought to have accepted after the directions hearing consisted of a covering letter and 14 attachments. It purported to be a response to the material about the nature of the appeal included in the letter from Mr Clough, set out at [231] above, which was sent before the directions hearing and the treatment of which gave rise to GJ’s first claim of bias. As will be apparent from the reply to Mr Clough set out at [232] above, the court did not engage with this material in the course of responding to Mr Clough's request. The matters were, however, argued at length on 12 July 2013, with considerable input from GJ (at [95] to [106] above). Despite this, her letter states:
It will be clear from my letters that the approach I suggested to the court on the 12 July 2013 as to the nature of the appeal is correct and that the respondent and the court are wrong. If the court continues on this course an appeal to the Court of appeal [sic] will be inevitable.
Bias in dealing with correspondence from parties – first and second complaints
I am satisfied that neither my willingness to deal (albeit not favourably) with a letter from AS’s lawyer about hearing arrangements that had apparently been copied to the other party, nor my unwillingness to accept unsolicited submissions that attempted, without leave, to re-open a matter after orders had been made (and that had on their face not been copied to the other party), would have given a fair-minded lay observer any reason to apprehend bias on my part against GJ. I am also satisfied that the contrast between those two approaches would not have led to any apprehension of bias.
Comments made in court (directions hearing)
The third complaint of bias was set out in paragraphs 9 to 17 of GJ’s affidavit dated 12 November 2013. GJ asserted that, in the course of the 12 July 2013 directions hearing, I had made a number of comments to the effect set out in those paragraphs.
AS noted that GJ had not provided a transcript to support her claims about what had been said in the course of earlier hearings of the matter, and that such comments as had in fact been made should be looked at in the context of a full transcript.
GJ submitted that the transcript was not freely available to her, and that in any case her recollection of what I had said, being "primary" or "first hand" evidence was more reliable than the "secondary" evidence provided by the transcript. She further asserted that "if the respondent genuinely believes the appellant's depositions are out of context the onus is on him to prove his belief."
At the hearing I pointed out that the court had obtained a transcript of the 12 July 2013 hearing and that copies could be made available to each of the parties. GJ declined my offer of a copy of the transcript and asserted that her affidavit setting out her recollections of my comments was at that point the only evidence formally before the court. She further asserted that neither transcripts nor even tapes of hearings were perfect, and resisted the proposition that neither of them was less reliable than a person’s memory.
Notwithstanding GJ’s views about the accuracy of transcripts and tapes compared with human memory, I have taken the view that, whether or not a transcript is tendered by a party, a judge asked to disqualify herself because of the things that she is alleged to have said in court is entitled to examine the transcript in considering the application.
After further argument, during which among other things GJ disputed that context was relevant (on the basis that it had not in her view been relevant in Grassby) GJ decided that she did wish to see a copy of the transcript, at which point she sought an adjournment for a week or two to enable her to check it. I explained that if the matter was adjourned she would be unlikely to get another listing for three months. Eventually she agreed to accept a copy of the transcript, and a break of 15 minutes to look at it and consider the context in which the impugned comments were made.
After an adjournment of 27 minutes, the hearing resumed, and GJ indicated that she was not prepared to confirm the accuracy of the transcript without checking it against the tape of the hearing concerned. The matter proceeded on the basis that GJ would seek to make out her case on the basis of the material then available from her affidavit and the transcript.
The relevant paragraphs of the 12 November affidavit were as follows:
9. On the 12th July 2013 her Honour Justice Penfold said words to the effect: “I will be reading the bits that you draw my attention to not the whole book cover to cover”.
10. On the 12th July 2013 Justice Penfold said words to the effect: ‘I’m not disputing that I’m just making sure that you’re not trying to sneak something in’. I said words to the effect “Why would I do that?” Justice Penfold said words to the effect: “Well because we’ve spent most of the afternoon arguing about all of the extra stuff.” I said words to the effect: “Why would I want to sneak something in that’s not very nice to say.” Justice Penfold said words to the effect “Alright, sneak might not be the right word”. I said words to the effect “I don’t think you should accuse me of sneaking something in when I’ve provided all of this..definitely not...no.”
11. On 12th July 2013 Justice Penfold said words to the effect: “The fact that you get away with something sometime doesn’t mean you have right to keep getting away”.
12. On 12th July 2013 Justice Penfold said words to the effect “Why are both of you persisting in trying to slow this down as hard as you possibly can” and “You seem to think there are unlimited resources for this matter.”
13. On the 12th July 2013 Justice Penfold said words to the effect “At this rate you are going to get a hearing date sometime next year and a decision a year after that.”
14. On the 12th July 2013 I said to the court words to the effect: “The court has a discretion to admit new evidence. Fresh evidence.” Justice Penfold said words to the effect: “Well indeed. Courts do generally have that discretion but they need good reasons and they especially need good reasons considering how much evidence is already before me in the appeal book.”
15. On 12th July 2013 Justice Penfold said words to the effect: “That’s why I said to you if there is a current problem you need to go back and apply for a new order.”
16. On the 12th July 2013 I said to the court words to the effect: “I don’t say I need urgent protection”. Justice Penfold said words to the effect: “Well if you don’t need urgent protection there is no scope on which I will make an order.” I said words to the effect: “I say I need ongoing long term protection.” Justice Penfold said words to the effect: “That is not what the Protection Orders Act is about.” I said words to the effect: “I think it is. I think it is restraining someone from future conduct.”
17. On the 12th July 2013 I said to the court: “I mean, maybe if he settled the defamation claim he would not have a need to keep producing..”. Justice Penfold said words to the effect: “Or maybe if you withdrew the defamation claim that would be the answer”.
Paragraph 9
Paragraph 9, GJ said, demonstrated bias in that I had prejudged the matter and therefore didn’t think I needed to read:
the whole book cover to cover ... bearing in mind that this lay observer isn’t a lawyer and isn’t a judge and doesn’t [know] about Fox v Percy or – – –
Paragraph 10
Apparently in relation to paragraph 10, GJ said that she relied on Grassby for the following propositions:
(a)that one comment could be enough to establish bias;
(b)that the comment had to be gratuitous or uncalled for to establish bias;
(c)that the fact that I had corrected my use of the word “sneak” of itself showed that my comment was uncalled for and gratuitous.
The exchange described in paragraph 10 of the affidavit is recorded in the transcript, and in context, as follows (the material set out below has been edited in two respects to take account of corrections proposed by GJ and confirmed by court staff listening to the audio recording of the relevant part of the hearing):
[GJ]: And you know, and what I say is, in the circumstances - and I guess this is, you know, a fairly important point, so it’s probably good that we talk about it. But in the circumstances, I say, of how that hearing was progressing and what the magistrate was saying to me, how he was, like, cross-examining me and then basically gave me this ultimatum of, if you say anything more, I’m going to hold you in contempt for interrupting, and I was like, well, you know, I can’t tell him I’m sick. I sort of‑ ‑ ‑
HER HONOUR: Well, in due course, you can take me through the actual transcript and make out that argument.
[GJ]: Well, then that’s why I’d like also to tender the audio.
HER HONOUR: Right, now I’m getting to that. I’m trying to get to that, but keep getting stuck on the other thing.
[GJ]: All right.
HER HONOUR: That, it seems to me, if that is actually the audio of what we’ve got a transcript of, that is properly part of the evidence.
[GJ]: Yes, that’s what I say.
HER HONOUR: All right.
[GJ]: But I haven’t done the whole lot. I can provide the whole lot, if you like.
HER HONOUR: What do you mean, you “haven’t done the whole lot”?
[GJ]: I haven’t done all the - like, all I’ve got here is the hearing of 8 March, and also the cross-examination on 7 May and 17 August 2011. But I can provide the audio of ‑ ‑ ‑
HER HONOUR: No, I don’t want them all, because ‑ ‑ ‑
[GJ]: That’s what I thought.
HER HONOUR: Because I’d have to say, I think it’s extremely unlikely that anything will justify listening to these - I mean, it’s going to take long enough to read this material, although that’s a separate issue, because as I think I’ve indicated, I will be reading the bits that you draw to my attention, not the whole book cover to cover.
[GJ]: Yes.
HER HONOUR: I am certainly not going to commit myself at this stage to listening in real time, which is what it would have to be, to two days of proceedings.
[GJ]: Yes – no, well I say in relation to my appeal that the cross-examination on 17 August is relevant because it shows how I was unreasonably treated by the court, and I say that is ‑ ‑ ‑
HER HONOUR: Now, that’s the subject of transcript that’s in here, presumably?
[GJ]: Well, the transcript is in there, but it’s the tape; adds a lot to the ‑ ‑ ‑
HER HONOUR: I’m not disputing that, I’m just making sure that you’re not trying to sneak
outin ‑ ‑ ‑[GJ]: No, why would I do that? In fact I notice ‑ ‑ ‑
HER HONOUR: Well, because we’ve spent most of the afternoon arguing about all the extra stuff you want to put in.
[GJ]: But I wouldn’t want to sneak - why would I want to sneak anything in? That’s not very nice to say.
HER HONOUR: All right, “sneak” may not be the right word, but you are not asking‑ ‑ ‑
[GJ]: I don’t think
anyone has ever accusedyou should accuse me of trying to sneak something in when I’ve provided all this information. Definitely not, no.HER HONOUR: All right. So this is material‑ ‑ ‑
[GJ]: In fact, [AS] filed an affidavit in which all he put on the - it included an audio and all he put on it apparently were those comments that I made when I left the court, and you know, this puts it in context. I think the hearing of 8 March has to be heard, because the audio just adds to the way that, you know, I was being treated and the manner in which I was being treated and shows that I was (a) being cross-examined and then (b) being unable to say, “Well, I’m sorry, I’m sick, I just can’t stay here anymore.”
HER HONOUR: Yes, most of which will be apparent from the transcript. But that aside, I’m happy to ‑ ‑ ‑
[GJ]: Well, it really adds.
HER HONOUR: Just slow down.
[GJ]: Yes.
HER HONOUR: Okay. I’m happy for you to put those in.
[GJ]: All right.
HER HONOUR: Now, I take it you don’t have any objection to that, [AS], because as I say, that’s part of this evidence really.
GJ submitted that these words set out in paragraph 10 were similar to the kinds of words that were used in Grassby.
In my view, a fair-minded lay observer who had been sitting in the court throughout the hearing would certainly have realised that GJ was testing my patience, but I do not accept that such an observer would have apprehended that GJ’s claim would be decided otherwise than objectively and on its merits.
Paragraph 14
In relation to paragraph 14 of her affidavit, GJ submitted that:
... a fair minded observer would say that if a court isn’t going to admit further evidence, ... that would help an appellant then that is another, especially in light of the letter that was provided to the court mentioning things about my making false statements about my financial situation, that the fair minded observer might see that you are not going to bring an impartial mind to the determination of the question.
...
Why wouldn’t you admit further evidence? Maybe the fair minded observer would be entitled to say “Well I’m not going to admit further evidence because I know that this person hasn’t got any money and these other lawyers are not going to get their costs” and things like that are going to go through their mind.
GJ further submitted, in effect, that my refusal to admit further evidence without a good reason demonstrated bias, not necessarily of itself but taken in conjunction with all the other comments of which she had given evidence.
Paragraphs 11, 12, 13, 15, 16 and 17
Neither a “manual” nor an electronic search of the transcript of 12 July 2013 revealed comments along the lines set out in paragraphs 11, 12, 13, 15, 16 and 17.
My memory is that I did make comments generally to the effect claimed by GJ in paragraphs 11, 12, 13, 15, 16 and 17 of the 12 November 2013 affidavit, and I can only assume they must have been made in one or more of the various other mentions required to bring this matter to hearing. In the absence of any transcript recording those comments and permitting them to be examined in context, I do not propose to deal with them in detail.
GJ said that paragraph 13 showed that I had prejudged the matter and concluded that it wasn’t a priority and that there wasn’t any need for a PPO.
As to paragraph 15, GJ submitted that the suggestion that she was in the wrong court and that she should go back to the Magistrates Court and make a fresh application indicated that I had prejudged the matter.
I am satisfied that the comment quoted in paragraph 13 would have been understood by a lay observer as referring to the well-known parlous state of the ACT Supreme Court’s lists, and that the comment quoted in paragraph 15, which has been “interpreted” for the purpose of GJ’s submission, would have been understood by a lay observer as advising GJ that an appeal to the Supreme Court was not the appropriate way to obtain a PPO that was urgently required by reference to current circumstances (because the Supreme Court’s concern was primarily whether the original refusal had been wrong).
Correction of transcript
GJ was given until 10 March 2014 to file and serve a copy of any pages of the 12 July 2013 transcript containing material that she considered had been incorrectly transcribed, with her corrections marked. After that, I was to consider whether it was necessary to list the matter for any further mention.
On 26 February 2014, GJ filed an affidavit sworn that day. It did not comply with the order as made, which required her to mark her corrections on a copy of the transcript. Instead, she identified in narrative form a number of transcription errors, described by her as follows:
Most of these were omissions of words such as instances where her Honour or myself repeated a word or two.
GJ also identified several errors in the transcription of the material quoted from paragraph 10 of her affidavit, at [248] above. As noted, the transcript quoted at [251] above has been corrected to take account of GJ’s 26 February affidavit and a separate check conducted by court staff.
None of those corrections alters my conclusions about GJ’s bias claims.
Comments made in court (appeal hearing)
GJ then made yet another submission to the effect that I had taken the wrong view about the nature of the appeal to the Supreme Court, and submitted that taking that wrong view also suggested that I had pre-judged the matter. I conceded to GJ that I had certainly pre-judged the issue of the powers I was required to exercise on the appeal, and she asserted that this was partly on the basis of the letter from Paul Clough set out at [231] above.
This led to the following exchange:
HER HONOUR: [GJ], a fair minded observer who looks at the transcripts would see that I have been, and the bench sheets, we don’t even need transcripts, I have been running this case from the very first day it came into my list on the basis that it is an error-based appeal. The very first set of orders I made were for you to identify the errors that the magistrate had made.
[GJ]: Yes, you gave me a template and I abided by it.
HER HONOUR: I did. How can you possibly say then that I have suddenly invented a view of the law after Mr Clough sent that letter shortly before the 12th - - -
[GJ]: It was advising that the nature of the appeal was a re‑hearing and making comments about my financial situation and not providing it to me and the court not providing it to me when the court has specifically made sure and insisted that any emails I send to the court also sent [AS] and that’s what I say a fair minded observer would see a court and a court being partial to the respondent. That’s what I say a fair minded observer would see. Court treating one party differently to another party and being partial to the respondent. Not being consistent in the way it deals with parties, with both parties. Being rude to one party, making gratuitous statements/comments about one party. It might be a different story if you were rude to [AS] as well and rude to his legal representatives but you’re not. You’ve been rude to me. Made sarcastic comments. They tell me you’re a lawyer, you’ve made comments that suggest - about me trying to sneak things in without any basis for them. [SM] has suggested that I do this as a matter of course. I didn’t make an application for Gray J to disqualify himself. I didn’t make - - -
These submissions canvassed not only the treatment of PC’s letter but also some of the matters set out in a further affidavit sworn by GJ on 29 January 2014, in which she set out parts of an exchange between her and me in the 17 October 2013 hearing, as follows:
42. On the 17th October 2013 the court said to me words to the effect, “They tell me you’re a lawyer”.
43. On the 17th October 2013 her Honour Justice Penfold said words to me to the effect, “There was no one else in the world who knew you were sick.”
44. On 17 October 2013 her Honour Justice Penfold said words to me to the effect, “No one who saw you rush out of the court in a great state?”
45. On the 17th October 2013 [SM] said words to the effect, “I might note this explanation is evidence from the bar table.
46. On the 17th October 2013 Her Honour Justice Penfold said words to the effect, “It is not evidence at all, it’s just a discussion.”
47. On the 17th October 2013 I said to Her Honour Justice Penfold words to the effect, “Maybe we should go through the transcript and work out what is evidence.”
48. 17th October 2013 Her Honour Justice Penfold said words to the effect, “Maybe we should work out whether I’m going to look at the transcript of the 8th March first.”
The full transcript of the relevant exchange is as follows:
HER HONOUR: Sorry, what are you saying? There was an affidavit you filed - - -
[GJ]: There was one - I filed one on 25 July 2012.
HER HONOUR: 2012.
[GJ]: Yes.
HER HONOUR: And what did that say?
[GJ]: It basically - paragraph 5 said - basically said that I wasn’t well on 6 March. I’d sent an email to Mr Earle. I opened three other emails but did not fully download them, as they were taking such a long time to download and I was not well. And then at paragraph 6 - - -
HER HONOUR: What did you - so that basically just said, “I wasn’t well one day”?
[GJ]: Yes, and then I - - -
HER HONOUR: What day was that that you said you weren’t well?
[GJ]: On 6 March. That was the day that I - - -
HER HONOUR: 6 March?
[GJ]: Yes, that was two days before the - - -
HER HONOUR: Right, okay.
[GJ]: The hearing. And I - - -
HER HONOUR: But again, that doesn’t identify why you walked out.
[GJ]: No, no, it doesn’t. No, it’s just in the lead up and it says why I didn’t download all these emails which were the affidavit that was served by me to - served on my Post Office Box on 7 March.
HER HONOUR: Right, but that - I mean, even - - -
[GJ]: Yes.
HER HONOUR: Whatever it was relevant to that was the mention that you weren’t well, but it was a mention, a general mention that you weren’t well - - -
[GJ]: That’s right.
HER HONOUR: - - - on a day two days before - - -
[GJ]: Well, you know, I try not to give specifics to people if I don’t really have to, and I - at that stage I didn’t - I wasn’t going to ask for an adjournment. I thought I was getting better. You know, I didn’t even know why I was sick. I didn’t know it was - it wasn’t until later that I worked out that it was probably food poisoning and that I’d been eating this cheese that I bought that was nearly out of date and I ate it on two occasions. So anyway.
HER HONOUR: None of that explains why there was no evidence of your sickness immediately afterwards. Immediate after - - -
[GJ]: Immediately after when?
HER HONOUR: - - - you’d walk out of court.
[GJ]: Why I haven’t put any evidence on?
HER HONOUR: That’s right.
[GJ]: Well, the reason I haven’t is because I only wanted to do it if it was absolutely necessary.
HER HONOUR: Right, okay.
[GJ]: And after the last court appearance it seemed that I wasn’t going to have to - you know, that you weren’t going to admit - - -
HER HONOUR: But presumably - - -
[GJ]: - - - further affidavits.
HER HONOUR: Presumably - - -
[GJ]: Further evidence.
HER HONOUR: - - - early on - - -
[GJ]: Yes.
HER HONOUR: - - - when it was an issue.
[GJ]: Yes.
HER HONOUR: You collected the evidence you might need even if - - -
[GJ]: For sure.
HER HONOUR: - - - you didn’t - - -
[GJ]: For sure. I kept the receipts and I - - -
HER HONOUR: For what?
[GJ]: For the cheese that I’d bought that I believed had - - -
HER HONOUR: [GJ] - - -
[GJ]: - - - caused me to be sick.
HER HONOUR: - - - they tell me that you’re a lawyer.
[GJ]: Yes.
HER HONOUR: How could a receipt for a piece of cheese be evidence that you were about to vomit - - -
[GJ]: Well - - -
HER HONOUR: - - - as you walked out of court?
[GJ]: - - - there was nothing else that I could do. I didn’t go to a doctor at the time.
HER HONOUR: Well, indeed.
[GJ]: Well, I didn’t. I just didn’t. I got over it. I realised that it was probably food poisoning. I just - you know, I didn’t. I didn’t see the need to. Why - what could a doctor do?
HER HONOUR: Well - - -
[GJ]: I go to doctors when I’m sick, and I got over it.
HER HONOUR: Okay. All right.
[GJ]: I realised what it was. Had it continued - if I’d continued to be very sick I would have gone to the doctor.
HER HONOUR: But at that stage you didn’t see that as relevant to your action, to see that as - - -
[GJ]: To go to a doctor?
HER HONOUR: You didn’t see it as significant that you had simply walked out of a hearing.
[GJ]: I - you know, in the circumstances I thought that the court would have adjourned the matter. That’s - and then I found out that they didn’t, and then I - - -
HER HONOUR: And when did you find out that they didn’t?
[GJ]: I got - when I listened to the tape. I obtained a copy of the - - -
HER HONOUR: Sorry, when did you discover that the order had been made?
[GJ]: I think that was when I got a copy of the tape and listened to it to find out what had happened. I might have been - - -
HER HONOUR: What sort of time are we talking?
[GJ]: I think within a day or two of it happening - - -
HER HONOUR: Right.
[GJ]: - - - I ordered the tape. And it might have taken a day or two to get it.
HER HONOUR: Right, okay.
[GJ]: That’s - you know. So it was - I found out about the order reasonably quickly. And then it was a situation well, you know - - -
HER HONOUR: And it didn’t occur to you at that stage - - -
[GJ]: To go to a doctor?
HER HONOUR: That - well, not necessarily to go to a doctor, to do - I mean - - -
[GJ]: To collect - - -
HER HONOUR: - - - there was no one else in the world who knew you were sick, is that - - -
[GJ]: The - - -
HER HONOUR: No one who saw you rushing into - - -
[GJ]: The person - - -
HER HONOUR: - - - the toilet in a great state as you ran out of - - -
[GJ]: At the court?
HER HONOUR: - - - the court?
[GJ]: Not at the court that I can - that I could think of and - and after that I felt sick and I went outside to get some fresh air, and then I went to my car.
HER HONOUR: And so you felt better after you’d got some fresh air?
[GJ]: No, I didn’t. No.
HER HONOUR: So where were you throwing up?
[GJ]: In the ladies’ toilets.
HER HONOUR: Right, and then you went outside and - - -
[GJ]: Then I went outside to get some fresh air - - -
HER HONOUR: - - - got some fresh air.
[GJ]: - - - and I walked to my car.
HER HONOUR: And you went home?
[GJ]: And then I went home. It was nearly lunch time and I thought well, you know, they’re going to adjourn.
HER HONOUR: And you didn’t ring the court or anything and say, ‘I’m sorry, I had to rush out’ - - -
[GJ]: No.
HER HONOUR: - - - ‘Can you please let the magistrate know that I want to resume later’.
[GJ]: I doubt if I had credit on my mobile. And then I went to the - I was sick again at home. And then I - - -
[SM]: Your Honour, I might note that this is just - this explanation is all just evidence from the Bar table.
HER HONOUR: It’s not evidence - - -
[GJ]: Yes, yes.
HER HONOUR: - - - at all, it’s just a - - -
[GJ]: It isn’t.
HER HONOUR: - - - discussion, yes.
[GJ]: And really that’s something that I want to raise because on 8 March there were a lot of comments made, especially by [SM] that were quite derogatory, and is that to be treated as evidence? Maybe we should go through the transcript of 8 March and work out exactly what is evidence.
HER HONOUR: No, maybe we should work out whether I’m going to even look at the transcript of 8 March first.
[GJ]: You know, like if the court took into account things like [SM] saying,
“There’s no evidence of mental illness, but I wonder if she does have a mental illness that causes her to continue this matter”
You know, these are highly derogatory remarks made to a court by a barrister who obviously wants the best result for his client and wants the court to dismiss my application. Especially when he says them and then says, “Well, there’s no evidence”.
In relation to paragraph 48 of her affidavit, GJ said that this was:
an indication that you’re maybe not going to give due consideration to all the material in the appeal book because you’ve already made up your mind.
That is, because she did not accept my view that on a rehearing I was not required to read all the evidence at first instance but only the parts to which I was directed by the parties, GJ said that a disinclination to read the entire body of material from the original hearing indicated pre-judgment of her case.
GJ summarised her claims about the 17 October 2013 hearing as follows:
[GJ]: Yes. That we have to take a look at all these comments from a point of the lay observer and we basically have to say “Well here’s this person looking at what happened, the comments that were made, and weighing whether that lay observer would gauge that this court is partial to one party” and I say yes, the lay observer would from the basis of the comments, especially the gratuitous comments and the conduct of the court in relation to being inconsistent in relation to the parties.
GJ made no more specific submissions about why this exchange might have caused an apprehension of bias, simply referring again to Grassby.
While some of the various comments as reported certainly betray impatience on my part, none of them in my view would be a basis for a fair-minded lay observer to conclude that I was likely to determine the appeal otherwise than on its merits. Indeed, to the extent that the impugned comments in fact relate to my attempts to clarify and articulate the nature of the appeal, and to ensure that GJ understood the case she needed to make and the kinds of matters that I had expected could be the subject of evidence, they reveal in my view a determination to decide the appeal in accordance with law rather than any inclination to dispose of it irrespective of the law and in a way detrimental to GJ.
Conclusions on disqualification application
Accordingly, I conclude that there was no basis for a fair-minded observer to apprehend that I might not bring an impartial mind to deciding GJ’s appeal and that I might decide it otherwise than on its merits, and therefore I see no reason to disqualify myself from determining GJ’s appeal.
That decision was communicated to the parties at a mention on 28 July 2014, on the basis that reasons for that decision would be provided in this judgment.
Orders
First, I refuse the application to disqualify myself from the determination of this appeal.
As to the appeal, I have found that the appeal is not competent and must be dismissed.
In case I am wrong about the competence of the appeal, I have considered the appeal and concluded:
(a)that there would be no basis for upholding a competent appeal against the order made by his Honour dismissing GJ’s application for a PPO; but
(b)that his Honour did err in making a costs order against GJ to the extent that he did not have power to make the order in the form in which it was made.
If the appeal were competent, I would dismiss it to the extent that it relates to the dismissal of GJ’s application for a PPO, allow it to the extent it relates to the costs order, and remit the question of costs to the Magistrates Court to be dealt with according to law.
Finally, as I indicated in the course of the appeal hearing, I reserve the costs of the appeal and allow the parties 14 days to file and serve any written submissions they wish to make about the costs of the appeal. I indicate, however, that my preliminary inclination would be to order that each party pays its own costs of this appeal.
I certify that the preceding two-hundred and eighty (280) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date:
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