GJ v AS (No 3) - [2015] ACTCA 31

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 Domestic Violence and Protection Orders Act 2008 (ACT) ss 6-7 11, 14, 29, 36, 48, 93, 96-97, 99 Domestic Violence and Protection Orders Regulation 2009 (ACT) regs 48, 70, 93 Supreme Court Act 1933 (ACT) s 37E
Cases Cited:	Allesch v Maunz (2000) 203 CLR 172 House v The King (1936) 55 CLR 499 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GJ v AS (No 3)

Details

AGLC: GJ v AS (No 3) [2015] ACTCA 31
Case: [2015] ACTCA 31
Decision Date: 3 August 2015

CaseChat Overview and Summary

The appeal concerned an application for a Personal Protection Order. The applicant, GJ, had their application dismissed by a Magistrate for want of prosecution. GJ then appealed this dismissal to the ACT Supreme Court, which dismissed the appeal as incompetent. GJ further appealed to the ACT Court of Appeal.

The Court of Appeal was required to determine whether the Supreme Court had erred in finding the appeal incompetent. Specifically, the court considered whether a dismissal for want of prosecution constituted a "refusal" of the application, thereby attracting a right of appeal, or if a right of appeal was only available after a final hearing on the merits. The court also considered whether the Supreme Court judge had erred in failing to disqualify herself for apprehended bias, and the jurisdiction of the Court of Appeal to award costs in appellate proceedings from the ACT Magistrates Court.

The Court of Appeal held that a dismissal for want of prosecution was not a "refusal" of the application in the sense that would attract a right of appeal under the relevant legislation. The court reasoned that the right of appeal was contingent upon a determination of the substantive merits of the application, which had not occurred. The court found no error in the Supreme Court's determination of the appeal's competency, nor any apprehended bias on the part of the judge. The court also confirmed its power to award costs in such appellate proceedings.

The appeal was dismissed with costs.

Orders

Orders of the court

The appeal be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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