GJ v AS (No 3)
[2015] ACTCA 31
•3 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | GJ v AS (No 3) |
Citation: | [2015] ACTCA 31 |
Hearing Date: | 8 May 2015 |
DecisionDate: | 3 August 2015 |
Before: | Refshauge, Rangiah JJ and Walmsley AJ |
Decision: | The appeal be dismissed with costs. |
Category: | Principal Judgment |
Catchwords: | APPEAL – General principles – Right of appeal – Dismissal of application for Personal Protection Order by Magistrate for want of prosecution – Appeal to ACT Supreme Court dismissed as incompetent – Whether any error of law – Competency of appeal where right of appeal only available after final hearing on the merits of the application – Dismissal not a “refusal” of the application PRACTICE AND PROCEDURE – Courts and judges generally – Judges – Whether judge erred in failing to disqualify herself for apprehended bias – General principles COSTS – Jurisdiction – General – Power to award costs in appellate proceedings – Application of Part 5.3 of Court Procedures Rules 2006 to appeals from the ACT Magistrates Court |
Legislation Cited: | Court Procedures Act 2004 (ACT) ss 7, 9, sch 1 Court Procedures Rules 2006 (ACT) Pt 5.3, rr 5001, 5051 |
Cases Cited: | Allesch v Maunz (2000) 203 CLR 172 House v The King (1936) 55 CLR 499 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 |
Parties: | GJ (Appellant) AS (Respondent) |
Representation: | Counsel GJ (Self-represented) (Appellant) Mr S D Malcolmson (Respondent) |
| Solicitors Self-represented (Appellant) Paul Clough Solicitor (Respondent) | |
File Number: | ACTCA 42 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Penfold J Date of Decision: 11 August 2014 Case Title: GJ v AS Citation: [2014] ACTSC 189 |
REFSHAUGE J:
I have read the careful and comprehensive draft reasons prepared by Rangiah J and Walmsley AJ. I agree with them and the order they propose.
| I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of Justice Refshauge. Associate: Date: 3 August 2015 |
RANGIAH J and WALMSLEY AJ:
Background
This appeal concerns a Personal Protection Order (PPO) sought by the appellant under the Domestic Violence and Protection Orders Act 2008 (ACT) (the Act), the dismissal of her application for want of prosecution, whether an appeal from that dismissal was competent, an apprehended bias allegation against Penfold J, who heard that appeal, and her Honour’s power to order costs against the appellant when she dismissed the appeal as incompetent.
When this appeal began, the respondent challenged its competency on the basis that the appeal to Penfold J had not been competent. The Court dismissed his application as her Honour’s order dismissing the appeal to her is one which is justiciable by this Court under s 37E(2)(a) of the Supreme Court Act1933 (ACT).
Statutory Setting
Sections 6, 7, 11, 14, 29, 36, 48, 96, 97 and 99 of the Act provide relevantly:
6Objects of Act
The objects of this Act include—
(a)…
(b)to facilitate the safety and protection of people who fear or experience violence by—
(i) providing a legally enforceable mechanism to prevent violent conduct; and
(ii) allowing for the resolution of conflict without the need to resort to adjudication.
7Principles for making protection orders
(1)In deciding an application for a protection order, the paramount consideration is—
(a)…
(b)for a personal protection order (other than a workplace order)—the need to ensure that the aggrieved person is protected from personal violence; and
(c)…
(2)If a protection order is to be made on an application under this Act, it must be the protection order that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to subsection (1).
11What conduct do personal protection orders restrain?
(1)A personal protection order may be made as a final or interim order.
(2)A personal protection order made as a final order may be made as a workplace order or a final order other than a workplace order.
Note Workplace orders are dealt with in div 6.2.
(3)…
(4)A personal protection order (other than a workplace order)—
(a)restrains the respondent from engaging in conduct that constitutes personal violence in relation to the aggrieved person; and
(b)may include a prohibition mentioned in section 48 (What final orders (other than workplace orders) may contain).
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.
29Grounds for making interim order
The Magistrates Court may make an interim order if satisfied that it is necessary to make the interim order to do 1 or more of the following until the application for the final order is decided:
(a)ensure the safety of the aggrieved person or a child of the aggrieved person;
(b)if the interim order is an interim workplace order—ensure the safety of the aggrieved person at the workplace, or an employee of the aggrieved person or other people at the workplace;
(c)prevent substantial damage to the property of the aggrieved person or a child of the aggrieved person.
36When interim orders become final orders
(1)This section applies if the Magistrates Court makes an interim order in the absence of a respondent.
Note For 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—
(i) 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
(ii) has a reasonable excuse for failing to act under subsection (4).
Examples—par (c) (ii)
1 the respondent was injured in a car accident and unable to return the endorsement copy in the time required
2 the 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
Note An 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.
NoteSee s 46 for the grounds for making final orders (other than workplace orders).
(8)In this section:
endorsement copy, of an interim order, means the copy of the interim order marked as the endorsement copy under section 64 (1).
respondent includes a representative of the respondent.
Note For review of final orders, see pt 11.
48What final orders (other than workplace orders) may contain
(1)A final order (other than a workplace order) may contain the conditions or prohibitions the Magistrates Court considers necessary or desirable.
Note This Act (including this section) is subject to the objects set out in s 6 and the principles for making protection orders set out in s 7.
(2)Without limiting subsection (1), the order may do 1 or more of the following:
(a)prohibit the respondent from being on premises where the aggrieved person lives;
(b)prohibit the respondent from being on premises where the aggrieved person works;
(c)prohibit the respondent from being on premises where the aggrieved person is likely to be;
...
96Appealable decisions
The following decisions under this Act are appealable:
(a)the making, amending or revoking of a protection order, other than an interim order or emergency order, by the Magistrates Court;
(b)the refusal of the court to make, amend or revoke a protection order, other than an interim order or an emergency order;
(c)a decision mentioned in section 95 made on the review of a consent order.
97When can someone appeal to Supreme Court?
(1)A person may appeal to the Supreme Court against an appealable decision if the person was a party to the proceeding in which the decision was made.
(2)…
(3) ...
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.
Factual Background
In 2005, by reason of the appellant’s connection with a NSW criminal case, several convictions were overturned and several accused retried. Although there is nothing to suggest the appellant behaved other than honourably, there was some public criticism of the process which led to the new trials. At that time, the respondent hosted (or managed) a website publishing much of that criticism. Some of the criticism was intemperate, vulgar, offensive, childish and, arguably, threatening.
The appellant took action against the respondent for defamation and was in May 2015, awarded substantial damages. Significantly for this appeal, she also sought a PPO against the respondent by applying to the Magistrates Court. As appears from ss 29 and 36 of the Act, an applicant may ask for an interim order and then an interim order may be made permanent.
On 13 January 2010, the Magistrates Court made an interim order in favour of the appellant. As appears from s 36(4), a respondent to such an order may object to its becoming a final order by filling in an endorsement copy of the order, indicating on the copy the fact that he or she so objects and returning the copy to the Court at least seven days before the return date for the application for the final order. The respondent, when served with the interim order, did not strictly comply with s 36(4), and a Registrar of the Magistrates Court purported to exercise the power to excuse his non-compliance.
The appellant’s application for a final order was heard by Magistrate Cush. On 29 April 2010, his Honour dismissed the application. The appellant appealed against that dismissal. Before her appeal was heard she became aware, for the first time, of the Registrar’s action in excusing the respondent’s compliance with s 36(4). She amended her Notice of Appeal and argued that the Registrar had lacked the power to dispense with compliance with s 36(4), and that only a Magistrate had that power.
On 7 March 2011, Gray J upheld that argument, set aside Magistrate Cush’s dismissal order and remitted the matter to the Magistrates Court to be dealt with according to law: GJ v AS [2011] ACTSC 119.
The application to excuse compliance with s 36(4) came before Magistrate Dingwall on 18 April 2011 and he granted it. The substantive matter was then adjourned for hearing by his Honour to a later date. There were some interlocutory hearings and then, on 17 August 2011, his Honour began the rehearing of the application for a final order. As she had done at all stages of the litigation up until then, and has done at all stages since, the appellant represented herself. The respondent, however, was represented by a solicitor and counsel. To accommodate the parties, the Court sat well beyond usual court hours.
In her case, the appellant called the respondent’s solicitor and then she herself gave evidence. At some point beyond 4:30 pm on the first hearing day the appellant closed her case and the respondent was called by his counsel to give evidence. In his evidence-in-chief he conceded that he had placed what were, in effect, immature posts on his website but he said he had taken them down and that there would be no recurrences. His examination-in-chief was completed. The appellant then began to cross-examine him.
At 6:06 pm the application was adjourned part-heard, with the respondent still under cross-examination. At the respondent’s counsel’s request, the Court directed that the resumed hearing be conducted by audio link, with the respondent’s counsel in Brisbane, the respondent in Sydney and the appellant appearing before the Court in Canberra. Before the matter was adjourned, the appellant indicated to Magistrate Dingwall that before the resumed hearing date, she would provide certain documents to the respondent she had not previously provided, so he could be properly prepared for the completion of his cross-examination.
The hearing resumed on 8 March 2012. Mr S Malcolmson for the respondent was in Brisbane. He was on audio link. The respondent was in Sydney, also on audio link. The appellant was in Canberra and appeared personally before Magistrate Dingwall. It transpired that the appellant had not provided the respondent with the documents she had said she would provide at the end of the previous hearing day. She argued however, for reasons that she gave to the Magistrate, that she should not be required to provide them. Since the earlier day’s hearing, there had been a voluminous quantity of correspondence between the parties, essentially generated by the appellant. The respondent’s counsel told the Court he wished to bring that to the Court’s attention by reading an affidavit to which they were exhibited. But there was a practical problem, because the appellant had not received a copy in advance of the resumed hearing. She had given the respondent a post office box for service of documents on her and a copy of the affidavit had been sent to her there. According to what she told the Court, she had not had time to go to the post office and pick up her mail, so she had not yet seen the affidavit. As it turned out, the affidavit was over 800 pages and was never formally read. In the course of a somewhat discursive argument, it became apparent the purpose of the affidavit was to found an application for an order that the proceedings be dismissed as an abuse of process. As Penfold J later noted, however, it is not clear that any such application had been foreshadowed.
The hearing was then adjourned for approximately an hour, although the appellant told Magistrate Dingwall she did not propose to use the time to collect her copy of the respondent’s affidavit, as she would lose her parking space and that would cost her some money.
The hearing resumed. Magistrate Dingwall then referred to the appellant’s refusal to provide documents to the respondent, and her non-compliance with an earlier direction to provide particulars of her claim. He also referred to what he described as her ‘lack of cooperation’ in the proceedings. He asked her to address him on why he should not dismiss her application as an abuse of process. In the course of their exchange she asked for an adjournment, which his Honour neither refused nor allowed. Rather, the exchange continued, with suggestions of an adjournment unresolved.
Shortly after 1:00 pm there was this exchange:
Counsel for respondent: “I remember on the last occasion whilst my client was in cross examination by the applicant, [he] 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...”
The appellant: “Sorry, I’m leaving. I’m sorry. I’ve had enough.”
Counsel for respondent: “...in two other Supreme Courts.”
The appellant: “I’m sorry. I have had enough of this.”
According to remarks by the Magistrate which appear on the transcript, the appellant then left the courtroom and did not return. Mr Malcolmson seemed initially unaware she was no longer in the courtroom and continued to make submissions, including that the proceedings were oppressive and vexatious. When he was made aware she had left, he asked for a non-suit, pointing out the appellant had left the bar table and the Court, so the application should be dismissed with costs.
After his exchange with Mr Malcolmson following the appellant’s departure from the court room, Magistrate Dingwall said:
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.
It is to be noted that Magistrate Dingwall did not identify the ground on which he dismissed the application. But in at least three places he referred to the appellant’s not wishing to pursue the application.
There is no provision for a non-suit in the Act or the Domestic Violence and Protection Orders Regulation 2009 (ACT) (the Regulations) but, as appears below, there is provision in the Regulations for summary dismissal of an application if an applicant does not, in a reasonable time, take a necessary step to have a case heard, or unreasonably takes a step to avoid the proceedings from being heard. Where such a dismissal occurs the applicant has the right to make a new application.
Regulations 48, 69 and 70 provide:
48 Discontinuance
(1)The applicant in a proceeding on an application may discontinue the proceeding at any time before a final decision is made in the proceeding by filing a notice of discontinuance.
Note If a form is approved under the Court Procedures Act 2004 for this provision, the form must be used.
(2) If a proceeding is discontinued, the discontinuance—
(a) does not prevent a further application being made in relation to the same, or substantially the same, matter; and
(b) is not a defence in a proceeding on any further application.
69 Summary stay or dismissal
(1) This section applies if, in a proceeding, it appears to the Magistrates Court, in relation to the proceeding generally or in relation to a particular application or part of the proceeding, that—
(a) no reasonable cause of action is disclosed; or
(b) the proceeding is—
(i) frivolous or vexatious; or
(ii) an abuse of the process of the court.
(2) The Magistrates Court may, on the application of the respondent or on its own initiative, order that the proceeding be stayed or dismissed either generally or in relation to the claim for relief.
(3) The Magistrates Court may receive evidence on the hearing of an application for an order under subsection (2).
70 Dismissal for lack of prosecution
(1)This section applies if the applicant in a proceeding on an application—
(a)does not, within a reasonable time, take a step necessary to have the proceeding heard; or
(b)unreasonably takes a step to avoid the proceeding being heard.
(2)The Magistrates Court may, on the application of the respondent and on the terms the court considers just, order that the proceeding be dismissed for lack of prosecution or may make any other order it considers just.
(3)The proceeding is to be treated as if it had been discontinued.
Note Section 48 deals with discontinuance.
After the dismissal of her application the appellant appealed to a judge of this Court. In her amended grounds of appeal she sought a PPO for two years, asked that the costs order against her be set aside, and that the respondent pay her costs.
Penfold J, who heard the appeal, found that although Mr Malcolmson had asked for a non-suit, Magistrate Dingwall had dismissed the application pursuant to reg 70(2), by reason of the appellant unreasonably having taken a step, namely withdrawing from the court, to avoid the proceeding’s being heard. An application disposed of in such a way is not one, she found, within ss 96 and 97 of the Act, which confines rights of appeal to decisions to make, amend or revoke a PPO or to refuse to make, amend or revoke a PPO. Thus the appeal, she considered, was incompetent. It followed from the appeal’s incompetence, she held, that it was not necessary for her to consider whether Magistrate Dingwall had had jurisdiction to make a costs order. However she said that, if she had had jurisdiction to consider the matter, she would have found he had had jurisdiction but had been required to fix the costs and not leave them at large.
After her Honour had reserved her decision, but before she had delivered her judgment, the appellant made an application to her Honour to disqualify herself from hearing it further, on the basis of apprehended bias. Her Honour dismissed that application.
The appellant’s grounds of appeal
The only order sought in the Amended Notice of Appeal before this Court is a PPO against the respondent. However the appellant has made it plain she also wants this Court to set aside the costs order made against her by Penfold J.
In a supplementary submission filed on 7 May 2015 she said:
The appeal should be upheld. The matter remitted to the Magistrates Court for the hearing to be completed. In the alternative that the court admit further evidence with the view to determining the matter on its merits. In the alternative that the court find that the respondent engaged in offensive and harassing conduct and makes an Order for the protection of the aggrieved person as he may engage in further personal violence if not restrained.
The grounds of appeal relied on by the appellant are:
(i)The learned trial judge made incorrect findings of fact when those findings were based on an absence of evidence and/or evidence that was inadmissible, including unsworn evidence and evidence of the decision and a finding of fact in RO 53 of 2010 which was unfair and highly prejudicial and in doing so [she] did not act on logically probative evidence.
(ii)The learned trial judge erred by admitting irrelevant evidence including that which went solely to the credit or financial circumstances of the unrepresented applicant 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.
(iii)The learned trial judge erred by failing to admit relevant evidence, including affidavits filed by the appellant and a sworn but unfiled affidavit that had been emailed to the respondent and the court, and failed to permit the appellant to give sworn oral evidence.
(iv)The learned trial judge erred in her finding that Magistrate Dingwall had afforded the applicant procedural fairness when he failed to adjourn the application, heard an application of which the applicant had not been given notice, took account of material that had not been served in compliance with the Domestic Violence and Protection Orders Regulation 2009, refused to make a final Order, dismissed the application for a protection Order, heard an application for costs and an application for dismissal on the grounds of lack of prosecution in applicant’s absence and thus did not provide the plaintiff with a reasonable or any opportunity to put a case as to why the application ought not to have been dismissed and why an Order was refused.
(v)The learned judge erred by not finding that Magistrate Dingwall had failed to comply with s 7(1)(b) of the Domestic Violence and Protection Orders Act 2008.
(vi)The learned judge denied the appellant procedural fairness, including when she cross-examined the appellant who was not under oath, and by causing excessive delays in the trial.
(vii)The learned judge erred when she took into account evidence from the respondent’s solicitor that was irrelevant to the decision and was not evidence in the trial and which she failed to provide to the appellant, which she denied the appellant the opportunity to reply to and which was unfair and highly prejudicial. In doing so, her Honour did not act on logically probative evidence.
(viii)The learned judge showed bias toward the applicant and failed to disqualify herself after making gratuitous comments and comments that suggested she had prejudged the matter and conduct that included withholding information relating to substantial matters provided by the respondent’s solicitor from the appellant.
(ix)The learned judge erred in finding that Magistrate Dingwall’s order to dismiss the application and refusal to make an Order was not an appealable Order and erred in finding the appeal relating to the dismissal was not competent and in finding that a dismissal of an application was not a refusal to make an Order.
(x)The learned judge erred in failing to take sufficient or any judicial notice of s 7(1)(b) of the Domestic Violence and Protection Orders Act 2008 by failing to make an Order and by failing to admit further evidence filed by the appellant or sought to be given orally.
(xi)The learned judge erred in failing to exercise her discretion to admit further sworn evidence.
(xii)The learned judge erred in failing to comply with ss 99 and 100 of the Domestic Violence and Protection Orders Act 2008 and/or failed to exercise her discretion regarding the court’s powers under ss 99 and 100.
(xiii)The learned judge erred in finding that Magistrate Dingwall’s finding that the respondent’s excuse for not lodging the endorsement was reasonable instead of finding it was unreasonable and not based on logically probative evidence and erred in not finding that the Magistrate had failed to comply with s 36 of the Domestic Violence and Protection Orders Act 2008.
(xiv)The learned judge erred in finding that costs could be awarded in the appeal and erred in her discretion in awarding costs.
The appellant provided the Court with lengthy written submissions which addressed those grounds.
Was the appeal to Penfold J competent?
The appellant conceded in her written submissions that the first matter for this Court to decide is whether her appeal to Penfold J was competent. She maintained her appeal had been competent.
The appellant submitted that although it appeared Magistrate Dingwall had dismissed her application under reg 70, and had had a discretion to dismiss, he should have considered s 7(1)(b) of the Act before exercising the discretion. Further, at the time his Honour made the order she was not present, so he had made an ex parte order and had failed to take the care a judicial officer should take on an ex parte application. She complained that he had had an obligation to hear her before dismissing her application. It was implicit in reg 70 that he should have waited a reasonable time before dismissing her application and he had failed to do that. Had he made enquiries he might have discovered (as she asserted was the case) that she had not been feeling well when she left the court. Her Honour ought to have found that the Magistrate’s decision was unreasonable and she ought to have admitted evidence from the appellant, explaining why she had left the court.
Consideration
As the appellant accepted, she at no time told Magistrate Dingwall she was feeling unwell and that that was why she was leaving. Indeed, at a point before leaving she had asked for an adjournment: “so I can defend myself”. As we have observed, that application had not been determined when she left.
Given what she said when she left, especially the words “I have had enough of this”, the Magistrate was, in our view, entirely justified in assuming she had decided to take no further part in the proceedings. There was no ambiguity in those words. We do not consider he had any obligation to make further enquiries or to wait to see if she returned. He took a course which was well open to him under reg 70. We can perceive no error in his Honour’s exercise of his discretion to dismiss her application for want of prosecution. It follows that any evidence the appellant might have given of having felt unwell was correctly not admitted by her Honour.
It is true, as the appellant contended, that the proceedings were ex parte by the time his Honour made the order but that was of the appellant’s doing and considerations which normally apply to ex parte hearings have no application here. His making of the order in her absence was not procedurally unfair. She absented herself from the hearing and made no reasonable attempt to let the Court know any reason for doing so other than in her statement as she left the court.
Although the appellant frequently referred this Court to section 7(1)(b), it applies only at the stage when a court is considering whether or not to make a PPO. The stage is only reached when the evidence has been heard and the submissions made. The appellant’s application never reached that stage.
It is implicit in reg 70 that a dismissal order under it is not made after consideration of the merits of the application. The preservation of the right of an applicant whose application has been dismissed under reg 70 to make a fresh application, in the same way an applicant who discontinues may reapply, is consistent with the policy of s 96, which is to provide a right of appeal only to a party to a decision after a final hearing on the merits.
Regulation 70(3) says that once an application has been dismissed for want of prosecution, “The proceeding is to be treated as if it had been discontinued” (emphasis added). Regulation 48(1) provides relevantly: “The applicant in a proceeding…may discontinue…at any time before a final decision is made…”.
It follows that an application which reg 70(3) says is to be treated as if it had been discontinued is one in which no final decision has been made.
When the appellant’s attention was, in the course of her oral argument, drawn to the plain words of s 96, she asserted simply that her Honour had been wrong in holding that her dismissed application had not amounted to a “refusal” to make an order.
Although in her written submissions the appellant pointed to the fact that she had never filed a notice of discontinuance that does not assist her because reg 70 provides that the application is treated as if it had been discontinued.
The appellant, in her written submissions, referred to the expression “step necessary” in reg 70(1)(a) and the word “step” in reg 70(1)(b) and submitted these referred only to interlocutory steps. We cannot see any justification for that qualification. It is clear that the regulation’s reference to “step”, wherever used, is broad enough to cover any relevant step, whether interlocutory or otherwise.
The appellant, in her written submissions, also submitted that Magistrate Dingwall had been wrong in making an order under s 36(6) dispensing with the respondent’s obligation to comply with the terms of s 36(4) when served with the interim PPO. However, that was not the subject of a ground of appeal and, in any event, there is nothing before this Court to show his Honour was in error in exercising the discretion he had.
The appellant also submitted that any limitation in the Act on her right to appeal from an inferior court was contrary to her human rights and to the Constitution. She sought leave to amend her Notice of Appeal to permit her to argue that point. For reasons the Court gave in the course of the appeal, however, leave was refused.
We conclude that the Magistrate’s dismissal for want of prosecution was not a “refusal” to make a PPO in the sense used in s 96 of the Act. As the dismissal was not a “refusal”, the appellant had no right to appeal from the order. Accordingly, the appeal to her Honour was incompetent and her Honour correctly so held.
The application to Penfold J that she disqualify herself
In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]-[13] the plurality said:
It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of bias…is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide…The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered; the observer is taken to be reasonable, and the person being observed is a ‘professional judge, whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial.’
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice...
We have observed that, after Penfold J had heard the appeal, the appellant asked her to disqualify herself on the ground of apprehended bias and that her Honour declined to do so. The appellant submitted to this Court that her Honour had been wrong not to have acceded to that application. We are firmly of the view that no error has been shown in her dismissal of that application.
The appellant relied on the following:
(a)She complained first about Her Honour’s treatment of an email sent to her Honour’s associate by Mr Clough, the respondent’s solicitor, in July 2013. It appears that on 10 July 2013, her Honour’s associate received the email which concerned a then forthcoming directions hearing; it raised matters such as whether the respondent needed to be present. The email also contained some assertions about the appellant’s financial status and, arguably, her mental health. On the face of the email, a copy appeared to have been sent to the appellant. As it happens, the appellant did not receive the email that day but she did receive a copy of it on 13 July. When her Honour’s associate received it she sent an extract of it to the appellant in connection with the interlocutory steps. The extract did not include the reference to the material concerning the appellant’s health and financial status. The appellant raised a number of matters about that email. She said she had been disadvantaged by receiving it several days later than when it was sent. She also submitted that her Honour may have been influenced against her by the reference to her financial position and her health. She contended too that the way her Honour dealt with the email shows she gave preferential treatment to the respondent because she responded to it without checking to see if she had received a copy of it, whereas when she had sent her Honour an email her Honour had first checked to see it had been sent to the respondent before responding to it.
(b)Her Honour had declined to consider submissions from her which had not been provided in accordance with her directions and she had declined to allow evidence of the state of her health on the day she withdrew from the hearing in the Magistrates Court.
(c)Her Honour had used language in the course of exchanges such as the following, which displayed bias:
[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.
(Her Honour accepted at AB 59 that this corrected version of the transcript could stand.)
(d)Her Honour had observed, in the course of argument, that if the appellant had a then current need for protection she could make a fresh application in the Magistrates Court. Thus she had prejudged the outcome.
(e)Her Honour had not agreed with the appellant’s submission as to the legal principles to be applied on the appeal.
(f)Her Honour had interrupted the appellant many times while being addressed by her and would not let her answer questions and then she explored with her what evidence she might have been able to adduce about her reasons for walking out of her hearing on 8 March 2012 but, inconsistently, declined to let her introduce that material as evidence.
(g)In her written submissions to this Court, the appellant referred to a delay in giving judgment on the costs aspect of the purported appeal as evidence of bias.
Consideration
None of the submissions should be accepted.
(a)As to the email sent to her Honour’s chambers by Mr Clough, the appellant was not able to point to anything she could or would have done had she received the email on the day it was sent. She compared her case to Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, where a Family Court judge was said to have received a counsellor in chambers after the counsellor had interviewed the parties and where the parties were not told until later of the meeting. That was a different situation from this one. There was no suggestion here of a secret provision of information by a witness or a party to her Honour.
(b)Allied to the argument concerning the email from Mr Clough was her argument that the respondent’s email contained gratuitous comments about her financial situation and health. That information was not formally before her Honour and it is commonplace for judges to receive documents containing information which is excluded from evidence. It cannot be suggested that her Honour should have disqualified herself because the respondent had made an untested and irrelevant allegation about her in an email.
(c)The way her Honour dealt with the email was conventional. On the face of the email, it had been sent to and received by the appellant on the day her Honour received it. Her Honour was not to know the appellant did not receive a copy the day it was sent. Her Honour was entitled to assume that the respondent’s solicitor had sent the email to the appellant. Her Honour did not act inconsistently when dealing with an email from the appellant. Where (as apparently was the case) it was not obvious on the face of the appellant’s email that it had been sent to the respondent, her Honour was entitled to ensure, before acting on it, that the respondent had received it.
(d)Failure to consider submissions not provided in accordance with directions was a proper and conventional discharge of her Honour’s powers. See Eastman v Director of Public Prosecutions of the ACT (2003) 214 CLR 318 at 329-30; [27]-[31]; 368, [143].
(e)Evidence that the appellant was feeling ill on the day she abandoned the hearing before Magistrate Dingwall was properly rejected by her Honour and the rejection was a conventional discharge of her Honour’s judicial duty.
(f)We regard the short extract from the transcript set out above as showing nothing more than a poor choice of words which was immediately corrected. In our view, a reading of the whole of the trial transcript, shows her Honour was very patient with the appellant throughout and gave her an extremely fair hearing. In oral argument before this Court the appellant referred to what she called “an attitude towards me”, which she said her Honour had displayed in the course of the hearing. Our reading of the trial transcript does not bear out any attitude other than one of patience and fairness.
(g)Her Honour’s reference to the appellant’s right to start fresh proceedings in the Magistrates Court was, as we see it, no more than a misunderstood attempt to assist her.
(h)Her Honour’s disagreement with the appellant’s view of the applicable law in an appeal was merely another example of her Honour applying applicable legal principles.
(i)The transcript does show her Honour interrupting the appellant on occasion, but in our view they were necessary interruptions, designed to have the appellant focus on the issues before her; her Honour’s exploration of why the appellant had abandoned the hearing in the Magistrates Court was not inconsistent with her Honour’s rejection of evidence on that issue.
(j)The delay from October 2013 until February 2014 in delivering judgment in what was obviously a difficult case, and where only one party was legally represented, was no evidence of bias.
We are not satisfied that a fair-minded observer would have a reasonable apprehension that her Honour failed to bring an impartial mind to the resolution of the issues in the appeal before her.
Costs order below
The appellant submitted that her Honour did not have the power to make the costs order she made and that, if she did have power, she erred in exercising her discretion to make the order.
We are not persuaded that an error was made in the making of the costs order. As her Honour observed, Pt 5.3 of the Court Procedures Rules 2006 (ACT) (CPRs) applies to appeals to the Supreme Court. Appeals under Pt 5.3 to the Supreme Court are “appellate proceedings”: see Dictionary definition of “appellate proceedings”. Rule 5051 and Item 6 of table 5051 expressly say that Pt 5.3 applies to appeals from the Magistrates Court under s 97 of the Act. Rule 5001 applies Pt 2.17 of the CPRs, which relates to costs, to appellate proceedings.
The appellant submitted that the rules making Pt 5.3 applicable to proceedings arising under the Act were invalid. We are not persuaded of any invalidity. On its face, the rule was properly made. The appellant says a court cannot derive power to award costs from a rule. She gives no authority for the proposition. The Court Procedures Act 2004 (ACT) gives broad powers to make rules about the Supreme Court’s procedures, including costs: see s 7 and sch 1, cl 26. The appellant has submitted that the Rules Committee contemplated by s 9 of the Court Procedures Act was not validly constituted for the making of the rules Penfold J saw as the source of power to make the costs order she made. The appellant named certain members of the legal profession she says were not qualified to serve on the relevant committee. But the committee to which she refers does not describe the Rule-making committee referred to by s 9 of the Court Procedures Act.
No error has been shown in her Honour’s exercise of discretion to order the appellant to pay the respondent’s costs before her. As costs should follow the event, the appellant should also pay the respondent’s costs of this appeal.
Orders
The appeal is dismissed with costs.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Rangiah and Acting Justice Walmsley. Associate: Date: 3 August 2015 |
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