Groves (a pseudonym) v Everette (a pseudonym)
[2023] ACTSC 27
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Groves (a pseudonym) v Everette (a pseudonym) |
Citation: | [2023] ACTSC 27 |
Hearing Date: | 22 February 2023 |
DecisionDate: | 22 February 2023 |
Before: | Loukas-Karlsson J |
Decision: | See [42] |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – appeal from decision of Registrar not to list a matter on an urgent basis for the hearing of an application to temporarily extend a family violence order – where matter remains listed in Magistrates Court – whether court has jurisdiction to hear such an appeal – no decision made to refuse to amend the family violence order – jurisdiction of Supreme Court not enlivened at this stage |
Legislation Cited: | Family Violence Act 2016 (ACT) ss 70A, 70B, 84, 86, 92 |
Parties: | Gianna Groves (a pseudonym) ( Appellant) Beckett Everette (a pseudonym) ( Respondent) |
Representation: | Counsel B Harders ( Appellant) No appearance ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) No appearance ( Respondent) | |
File Number: | SCA 9 of 2023 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: The Registrar Date of Decision: 16 February 2023 |
Loukas-Karlsson J:
Introduction
1․At the outset I underline that courts must do their best to ensure that family violence matters are dealt with as expeditiously as possible. This matter has come before me on a duty basis. There was no appearance on behalf of the respondent. The appellant indicated this was due to issues of service and tendered evidence showing that service had been attempted four or five times (on 17 February 2023 at 12.45pm and 5.45pm and on 18 February at 10.18am, 12.45pm and 4.40pm at two addresses). The evidence before me did not indicate if the last attempt was properly described as an attempt or merely a discussion with an individual who did not have any useful information. That evidence also indicated that the respondent may now be residing with another individual somewhere in the Ballarat area, but that the process server was not sure of that address. In the result I was satisfied that the hearing could proceed in the absence of the respondent.
2․The appellant is seeking to appeal from a decision of the Registrar of the Magistrates Court refusing to list an application for a temporary extension of a Final Family Violence Order for urgent hearing.
3․What follows is a brief summary of the matters that led to the application being listed before me. The summary is drawn from the affidavit of Samuel Carmichael affirmed on 21 February 2023 which was read on the application. Mr Carmichael is the solicitor with carriage of the matter for the appellant.
4․Mr Carmichael received instructions to act on behalf of the appellant on the afternoon of 16 February 2023 as a Final Family Violence Order entered in the appellants favour was due to expire at 11.59pm that evening.
5․On instructions, Mr Carmichael filed an application for an extension and amendment of the order pursuant to s 86 of the Family Violence Act 2016 (ACT) in the Magistrates Court. That application sought an extension of the order for a further period. The appellant also sought a temporary extension of the order pending the hearing of the application to extend the order for that period. Such an amendment is contemplated by s 84 of the Family Violence Act.
6․The appellant also filed on 16 February 2023 an application in proceeding, seeking an urgent hearing on the application for the temporary extension and seeking that the hearing occur in the absence of the respondent.
7․The applications were filed at approximately 3.00pm on 16 February 2023. The appellant was advised at or around 3.35pm that the Magistrates Court refused to list the matter on that day. Why that happened is not clear on the material before me. Rather, the Court (I infer a Registrar of the Magistrates Court or some other officer under their direction) listed the application in proceeding on 23 February 2023 at 9.00am. The appellant was also advised that the respondent would need to be served with a copy of the application in proceeding prior to the hearing of the application. It is not presently clear on the material before me if that was a formal order of the Court or a verbal direction. It is of no moment for the purposes of this judgment.
8․The substantive application (seeking the permanent extension) was listed on 29 March 2023 in the Magistrates Court. No issue is raised in respect to the listing of that hearing.
9․On 21 February 2023, the appellant filed a notice of appeal seeking to appeal from the decision of the Registrar of the Magistrates Court not to list the application in proceeding on an urgent basis and seeking to appeal from the decision that the application in proceeding must be served on the respondent.
10․That notice of appeal relevantly summarised the orders that are appealed from at [4] which stated:
The appellant appeals from the following:
The decision of the Registrar to refuse to list the Temporary Extension Application for hearing on an urgent basis on 16 February 2023;
The decision of the Registrar to direct that service of the Application [the substantive application] and the application in proceeding be affected on the respondent by the appellant prior to the Temporary Extension Application being heard;
The decision of the Registrar to refuse to hear and determine the Temporary Extension Application in the absence of the Respondent.
11․The notice of appeal was accompanied by an urgent application in proceeding which effectively sought that the appeal be expedited and sought various consequential orders relating to dispensing of service and various timetabling orders.
12․The matter was referred to me as the duty judge on the afternoon of 21 February 2023 and I directed that the matter be listed for a directions hearing on the morning of 22 February 2023. A court cannot act without jurisdiction.
13․I listed the matter as I was not satisfied that the Court had jurisdiction to hear an appeal from the orders (or directions) issued by the Registrar of the Magistrates Court in relation to directions made with respect to the listing of the substantive application or the application in proceeding.
14․If the Court does not have jurisdiction, it is clear that there is no utility in listing the matter for an urgent expedited hearing.
Jurisdiction of the Court
15․Counsel for the appellant referred me to s 92 of the Family Violence Act as the basis for the Court’s jurisdiction to hear an appeal of this kind. That section provides:
92 Appealable decisions
The following decisions by the Magistrates Court under this Act are appealable:
(a) the making, amending or revoking of a final order;
(b) a refusal to make, amend or revoke a final order;
(c) a decision mentioned in section 91 made on the review of a consent order.
16․It is clear that if the decision of the Registrar is an appealable decision, then this Court would have the power to “make the decision or order that, in all the circumstances” is appropriate. It is plain that that power would extend to the orders the appellant is seeking.
17․Counsel for the appellant submitted that as the application in proceeding was before the Registrar on 16 February 2023 and the Registrar listed the matter for hearing on 23 February the Court would be satisfied that that was a decision refusing the application for an amendment of the final order.
18․Counsel referred in particular to r 6256 of the Court Procedures Rules.
19․The general rule relating to appeals from decisions of Registrars of the Supreme Court and the Magistrates Court is contained in r 6526 of the Court Procedures Rules 2006 (ACT) which states:
6256 Appeals from registrar’s orders etc
(1) This rule applies to the following orders:
(a) an order made by the registrar of the Supreme Court in the exercise of jurisdiction given under rule 6250 (Jurisdiction exercisable by registrar of Supreme Court);
(b) an order made by the registrar of the Magistrates Court in a civil proceeding;
(c) an order made by the registrar under rule 6253 (Registrar’s powers—subpoenas).
Note 1 This rule does not apply to a family or personal violence proceeding (see r 3803 (c)).
Note 2 Order is defined in the dictionary (see also def made).
(2) If the order is made by the registrar of the Supreme Court, and a party to the proceeding is dissatisfied with the order, the party may appeal, in accordance with these rules, to the Supreme Court constituted by a judge or the associate judge.
Note See the Supreme Court Act 1933, s 8 (Exercise of jurisdiction).
(3) If the order is made by the registrar of the Magistrates Court, and a party to the proceeding is dissatisfied with the order, the party may appeal, in accordance with these rules, to the Magistrates Court constituted by a magistrate.
(4) The appeal is a rehearing of the matter anew.
…
20․Rule 3803 relevantly states that rule 6256 does “not apply to a family violence or personal violence proceeding”.
21․On that basis, counsel for the appellant submitted that there was no avenue for an appeal in the Magistrates Court and as such the remedy is afforded by s 92 of the Family Violence Act.
22․Counsel for the appellant referred me to a decision made by Mossop J granting an extension to a Family Violence Order following a similar appeal being brought against a Registrar’s decision.
23․In my view and noting that his Honour did not publish reasons for the making of the decision, that decision appears to be distinguishable for two reasons. First, it appears that at the hearing before Mossop J the respondent consented to the order being made. There is no such consent in this case (as there is no appearance from the respondent). Second, it appears that by the time the case was heard by Mossop J it had been listed before a Registrar and a Magistrate on several occasions with no decision being made on the urgent application seeking a temporary extension. It is clear, in my mind, that in those circumstances a judge could be satisfied that a de-facto or substantive refusal of the application had been made.
24․For the reasons I will come to I am not satisfied that is the situation presently before the Court.
25․I am satisfied that had the Registrar refused to make an amendment to the final order I would have jurisdiction.
26․The central issue, however, is that in my view, neither a decision to refuse to list a hearing at the time the appellant wished the hearing to be held nor a decision that the application needed to be served on the respondent is a refusal to amend a final order.
27․Both decisions are effectively an internal listing matter of the Magistrates Court. In support of that conclusion is the fact that the Registrar listed the matter before a Magistrate on 23 February 2023 at 9.00am. Had the Registrar refused the application, the matter could not have been listed before the Magistrate. Rather, the decision would have been made and any appeal would lie to the Supreme Court. In the result it is clear the Registrar could not have refused the application on 16 February 2023.
28․Indeed, counsel for the appellant accepted that no formal order had been made refusing the application in proceeding by the Registrar.
29․In the result, I do not accept the submission from counsel for the appellant that the Court has jurisdiction under s 92 of the Family Violence Act at this stage.
30․There was no additional basis on which counsel for the appellant submitted this Court has jurisdiction to hear the appeal. The next issue to consider is where this leaves the appellant.
31․In my view, notwithstanding the text of r 3803(c), it seems that a Magistrate must retain the power to either remake or otherwise vary the preceding order of a Registrar of the Court. In that regard I also note the text of Practice Direction No 2 of 2018 which indicates that appeals from interim decisions of registrars lies to a Magistrate. To find otherwise would leave the appellant in abeyance with no remedy from an order she is seeking to challenge. Such a position would not accord with the overarching purpose with which the Court Procedures Rules must be interpreted.
32․In particular, noting one of the orders the appellant is seeking to appeal is the order that the respondent be personally served before the hearing of the application in the Magistrates Court. In my view, that is an order that could, at a Magistrate’s discretion be varied by a further order or direction.
33․I note that there is a power in the Family Violence Act to accept substituted service. Based on the evidence before me on the hearing of the application, it is clear that the appellant has taken reasonable steps to attempt to serve the application in proceeding. That personal service is required in a case of this kind may be considered a flaw in the underlying scheme of the Family Violence Act.
34․I note that the matter presently remains listed in the Magistrates Court tomorrow for the hearing of the application in proceeding at 9.00am on 23 February 2023. Given my conclusion above, it is clear that this Court does not presently have jurisdiction to hear an appeal (as there has been no formal refusal of the application).
35․What is clear, in my view, however, is that the Magistrate has the power to vary or amend the order of the Registrar requiring personal service before the hearing of the urgent application and to proceed with the hearing of the application for the temporary extension.
36․Such a power is clearly contemplated by s 70A(2) of the Family Violence Act which provides:
70A Personal service of application on respondent
…
(2) However, if personal service is not reasonably practicable, the court may order that the application be served in a way, stated in the order, that the court considers is likely to bring the application and timing notice to the attention of the respondent.
37․An application would only be dismissed for non-service where satisfied that a “respondent has not intentionally avoided service”: s 70B(c). That section clearly implies that there are situations where service cannot be affected, and the application can then proceed.
38․However, this is ultimately a matter for the Magistrate to consider at the hearing tomorrow.
39․In my preliminary view, given the Magistrate would have that power, it seems that if the Magistrate refuses to deal with the application tomorrow that it may be a situation akin to that before Mossop J which would enliven the jurisdiction of this Court to hear an appeal from that decision.
40․Such an approach accords with the overarching purpose of the Family Violence Act being to protect victims and alleged victims of domestic violence by ensuring that they are protected by those orders.
41․In the result, in my view, the appropriate orders at this stage are to adjourn the matter without making a decision on the application in proceeding or the appeal. The appellant will have leave by contacting my associate to seek to have the matter re-listed on 24 February 2023 depending on what occurs in the Magistrates Court on 23 February 2023. Leave may also be sought in-chambers to amend the notice of appeal to refer to any decision made by the Magistrate at that hearing.
Orders
42․In the result, I made orders in the following terms:
(a)The application in proceeding and the hearing of any appeal is adjourned to a date and time to be fixed.
(b)The appellant has leave to seek to re-list the matter by contacting the associate to Loukas-Karlsson J and leave to seek orders expediting the appeal or any amendment to the notice of appeal.
(c)Any further decision on the listing of the appeal or orders expediting the appeal to be dealt with on the papers.
Addendum
43․It is, in my view, remarkable that an individual with a Final Family Violence Order that was expiring at midnight on 16 February 2023 was not able to have the application for a temporary extension heard on that day (in circumstances where the substantive application was accepted for filing).
44․The decision not to list the matter has left the appellant with no benefit of any protection afforded by such an order in circumstances where she is seeking to extend the order.
45․I note that the appellant accepts that she can seek to apply for a further interim family violence order but that if she does so she will face a higher bar than if the application was one for a temporary extension of a Final Family Violence Order. Individuals need to be afforded the opportunity to have their applications for extensions of orders heard in as short a time as is possible.
46․I will provide a copy of these reasons for judgment to the appellant’s representatives in advance of publishing the judgment to the library. Counsel for the appellant may contact my chambers to seek any redactions or any delay in the dissemination of these reasons.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Andrew Ray Date: 24 February 2023 |
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