Hans Ekblad v Lorraine Ekblad and Or

[2015] NSWSC 507

Supreme Court

New South Wales

Medium Neutral Citation:

Hans Ekblad v Lorraine Ekblad & Or [2015] NSWSC 507

Hearing dates:

4 February 2015

Date of orders:

04 February 2015

Decision date:

06 May 2015

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

Leave to Appeal is Refused
Insofar as it is necessary, the Summons filed on 8 August 2014 is struck out

Catchwords:

APPEAL – Apprehended Domestic Violence Order (ADVO) - Application for extension of time to lodge an appeal - leave to appeal against the decision of the Local Court dismissing the application for ADVO – allegation of bias – merits of appeal

APPEAL – Apprehended Domestic Violence Order (ADVO) - jurisdiction of Supreme Court to hear an appeal against the decision of the Local Court dismissing the application for ADVO

APPEAL – Costs – Application for extension of time to lodge an appeal

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Forensic Procedures) Act 2000
Local Court Act 2007
Supreme Court Act 1970

Cases Cited:

Bimson Roads & Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827
Cunningham v Cunningham [2012] NSWSC 849
Franks v Franks [2012] NSWCA 209
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512
R v SY [2004] NSWCCA 297
R v Zorad (1990) 19 NSWLR 91
Tomko v Palasty (No. 2) [2007] NSWCA 369
Vincent Francis Stanizzo v Muhammad Badarne & Ors [2014] NSWSC 689

Category:

Principal judgment

Parties:

Hans Ekblad (Plaintiff)
Lorraine Ekblad (First Defendant)
Local Court of New South Wales (Second Defendant)

Representation:

Counsel: Mr J Tyler-Stott (Plaintiff)
First Defendant in person
Second Defendant via submitting appearance

File Number(s):

2014/166262

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Date of Decision:

8 April 2014

Before:

Local Court Magistrate Milledge

File Number(s):

2013/254240

Judgment

1. On 3 June 2014 the plaintiff, Hans Ekblad, filed a summons in this Court seeking leave to commence an appeal against the decision of Magistrate Milledge of 8 April 2014 sitting in the Local Court, dismissing his application for an Apprehended Domestic Violence Order (“ADVO”) against his former wife, Lorraine Ekblad. Ms. Ekblad is the first defendant in these proceedings. Magistrate Milledge was named as the second defendant in the original summons, but the Amended Summons, filed on 8 August 2014, averred the Local Court of New South Wales as the correct second defendant.

2. A submitting appearance has been filed on behalf of the second defendant in accordance with the usual procedure.

3. The plaintiff sought the following orders:

1. “Extension of time to lodge the appeal;

2. An order pursuant to s59(2)(a) of the Crimes (Appeal and Review) Act 2001 by virtue of s56(1)(c) of the Crimes (Appeal and Review) Act 2001 and s70 of the Local Courts Act 2007 (sic) setting aside orders of Magistrate Milledge of 8 April 2014 whereby she dismissed the plaintiff’s ADVO application, and remitting the matter to Local Court to be dealt with according to law by another magistrate;

3. An order pursuant to s59(2)(a) of the Crimes (Appeal and Review) Act 2001 by virtue of s56(1)(e) of the Crimes (Appeal and Review) Act 2001 and s70 of the Local Courts Act 2007 (sic) setting aside orders of Magistrate Milledge awarding costs against the plaintiff;

4. In the alternative to 2 and 3, an order of certiorari pursuant to s69 of the Supreme Court Act 1970 quashing the decision and orders of the Local Court and remitting the matter to be determined by another magistrate in the Local Court;

5. Costs

6. Any other orders the Court deems appropriate.”

4. The only ground of appeal relied on was that the learned magistrate denied the plaintiff procedural fairness.

5. On 4 February 2015 I refused the plaintiff’s application for extension of time in which to appeal. These are my reasons for so doing.

Brief history of the proceedings

6. The plaintiff and the defendant met in 2001 and married in 2009. There is one child to the relationship, born on 7 June 2011 (“the child”). The parties separated on 22 February 2012, and the plaintiff subsequently commenced divorce proceedings in the Family Court of Australia. As is evident from the material before the court, it was an acrimonious separation.

7. Final parenting orders were made by the Family Court by consent on 31 May 2013. One of the orders specified the procedure for the handover of the child before and after contact visits with the plaintiff, namely that the handover would take place at the entrance to the Post Office at the Warriewood Shopping Centre, with the plaintiff and the defendant, or their respective nominees, and no others, present in the vicinity at the time.

8. On 21 August 2013 the plaintiff filed an application for an apprehended domestic violence order pursuant to s.15 of the Crimes (Domestic and Personal Violence) Act 2007 (“the Act”). After the usual directions for filing and service of the evidentiary material and some subsequent delay whilst the question of interim orders was determined (with no interim orders made), the matter was ultimately listed for hearing on 8 April 2014 at the Downing Centre before Magistrate Milledge. Both parties appeared unrepresented.

9. Having heard the evidence in the plaintiff’s case, the learned magistrate dismissed the application and made an order for costs against the plaintiff. The conduct of the proceedings will be addressed in further detail below.

10. On 17 April 2014 the plaintiff lodged an appeal to the District Court against the refusal of the Court to make an ADVO.

11. With that appeal on foot, the plaintiff next filed the present summons to this Court, on 3 June 2014.

12. On 4 June 2014 at the Sydney District Court, represented by Mr Tyler-Stott of counsel, the plaintiff sought and was granted leave to withdraw his appeal to the District Court. His decision to withdraw his appeal to the District Court was evidently taken because he preferred to seek review of the Local Court ruling in this jurisdiction.

13. The orders of the Local Court remained in force.

14. The matter came before me for hearing on 4 February 2015. The plaintiff appeared represented by Mr Tyler-Stott. The defendant appeared in person, unrepresented. Having considered the evidence and heard from the parties, I refused the plaintiff an extension of time in which to pursue an appeal to this Court.

The Proceedings in the Local Court

15. As noted the only ground of appeal advanced by the plaintiff was that the learned magistrate denied the plaintiff procedural fairness.

16. The plaintiff submits that the learned magistrate took over the proceedings by becoming overly involved in the conduct of the hearing and encroaching into the role of the parties. He further submits that her Honour admitted evidence of her own volition, in the absence of a tender by either party. Particular criticism relates to the statement of Ms Ekblad which was admitted in evidence during the plaintiff’s case. Following directly is the complaint that, having admitted the statement of Ms Ekblad, the magistrate did not afford the plaintiff an opportunity to cross examine Ms Ekblad on that material, thereby leaving her evidence untested.

17. In considering the plaintiff’s complaint to this Court it is necessary to consider what occurred in the Local Court during the hearing.

18. The matter came before her Honour sitting at the Downing Centre Local Court on 8 April 2014. The plaintiff in these proceedings brought the application for an Apprehended Domestic Violence Order in the Local Court against his former wife.

19. At the commencement of the proceedings before her Honour, the plaintiff tendered a seventy-two page document which commenced with what he referred to as his “statement”. This was a document titled “Apprehended Domestic Violence Order (ADVO); Supportive Documentation and Evidence”.

20. This document was not a statement in the sense that that word is ordinarily understood, and was not made on oath or affirmation. It was instead a collection of purported facts and assertions, many of them clearly irrelevant to the proceedings before the court, and many of them being scandalous allegations against the defendant touching on matters of which the plaintiff could have had no personal knowledge.

21. For example, in the opening lines, the plaintiff made an assertion about the defendant’s childhood of which he could have had no direct knowledge, which was likely to be distressing to the plaintiff, and which could have had no bearing whatsoever on the determination of the application for the ADVO. The very next lines of the statement referred to the defendant’s participation in a “Yoga sect” in India, and then made a scandalous allegation against the defendant, again, in circumstances where the allegation was of matters of which the plaintiff could have had no personal knowledge, which were no doubt deeply offensive to the defendant, and which were entirely irrelevant to the Local Court proceedings.

22. The plaintiff went on in his statement to accuse the defendant (whom he referred to as the accused) of past acts of perjury and making false statements, as well as making general allegations of “physical, psychological, verbal, financial, and emotional abuse”.

23. The allegations of more recent incidents which were said to give rise to the plaintiff’s fear of the defendant and the need for the ADVO to be made for his protection were set out in very general terms, and in a manner wholly contrary to evidentiary rules. The evidentiary worth of the document as evidence in support of the orders sought was negligible.

24. Annexed to the plaintiff’s statement were numerous documents including extracts from transcripts of proceedings between the parties in other courts (of which there seem to have been many), copies of documents and correspondence relevant to Family Court proceedings, including correspondence from the plaintiff to the defendant’s legal representatives in the Family Court matters, and “Fact Sheets” (apparently) from a men’s advocacy group in Victoria which set out what were purported to be facts about the incidence of women and particularly “feminists” abusing and oppressing men.

25. Her Honour (correctly in my view) saw little in the material tendered by the plaintiff which was in any way relevant to the proceedings before her. She considered it, but regarded it as inadmissible and without weight (see T3:37; T17 for example). Despite that, and no doubt intending to take a practical approach to a matter involving two unrepresented litigants, her Honour received the plaintiff’s “statement” into evidence, as Exhibit 1.

26. On oath, the plaintiff gave some very general evidence about an incident on 7 October 2013 which he asserted gave him cause to fear the defendant. The incident took place in the context of a meeting to hand the child to the plaintiff. Her Honour endeavoured to have the complainant provide relevant detail of the incident which was within his personal knowledge. That evidence amounted to no more than an assertion that, when the defendant attended the shopping centre to hand over the child she was angry. Although the plaintiff repeatedly tried to give evidence of the supposed observations and beliefs of another person about the conduct of the defendant on that occasion, and to offer his assumptions about what the defendant had been doing with her mobile telephone, her Honour rightly refused to receive evidence of that nature.

27. The next incident upon which the plaintiff relied to establish a basis for the order he sought was an incident of 15 September 2013. On this occasion the plaintiff deposed that he was at home in the garden with his daughter when he saw a car parked outside his home. The car sped off soon after he noticed it. The car was the same make and model as a vehicle used by a relative of the defendant and, on that basis, the plaintiff sought to give evidence as to the identity of the occupants of the car, and of his belief that the occupants were acting at the direction of the defendant.

28. Again, her Honour regarded this evidence as without weight.

29. The plaintiff next deposed to an incident on 4 September 2013 when he asserted that the defendant had attempted to intrude into his home (T20:23). This allegation was based on no more than somewhat far-fetched conjecture. The plaintiff had seen a car similar to one driven by the defendant leaving the street in which he lived as he drove into it. There was no evidence of any physical sign of entry or attempted entry to the plaintiff’s home (T20:39). On the basis of the observation of the car, the plaintiff asserted that the defendant had been at the property and had used a key in an attempt to enter his home.

30. The final incident of which the plaintiff deposed was an incident on 9 February 2014. On that occasion, the child was handed to the plaintiff by the defendant for an access visit. Afterwards, the plaintiff and his new partner and her children went to a department store within the shopping centre where the handover was made to do some shopping. The defendant was seen by the plaintiff in the same store. Although the plaintiff said that he felt very intimidated when he saw the defendant in the aisles of the shop, he gave no evidence of the defendant actually doing anything towards him to give rise to any reasonably held fear.

31. Apart from the plaintiff’s repeated endeavours to make vague and general assertions before the Local Court, many of which purported to predict the defendant’s future conduct relevant to the expected delivery of a Family Court judgment, the plaintiff gave no relevant evidence of overt conduct by the defendant that could justify the making of an ADVO.

32. The circumstances in which a court may make an ADVO are set out at s.16 of the Crimes (Domestic and Personal Violence) Act 2007.

16(1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:

(a) the commission by the other person of a personal violence offence against the person, or

(b) the engagement of the other person in conduct in which the other person:

(i) intimidates the person or a person with whom the person has a domestic relationship, or

(ii) stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

33. A “personal violence offence” is defined by s.4 of the Act. Intimidation and stalking are defined by ss.7 and 8 respectively.

34. After taking the plaintiff’s evidence, and before inviting cross-examination, her Honour asked to see the statement of the defendant, which had been filed and served in accordance with a timetable previously set by the Court. In the same way as she had done with the plaintiff’s statement, her Honour admitted the statement as an exhibit, Ex. 4, without giving prior consideration to the admissibility of its contents.

35. It must be borne in mind that her Honour was hearing a matter involving two unrepresented litigants, in the context of a busy Local Court list. It was necessary for the court to control the proceedings to some degree, lest the proceedings were allowed to become no more than a forum in which two hostile litigants could exchange abuse.

36. There was some very limited cross-examination of the plaintiff by the defendant, but it quickly took on the character of an argument between the plaintiff and defendant, and it seems to have lasted for only a matter of minutes. The defendant did not pursue it because, as she commented to her Honour, she was not legally represented. Such evidence as was given in cross-examination did not advance the plaintiff’s application.

37. The plaintiff called no other evidence in support of his application.

38. Before moving to the next stage of inviting the defendant to call any evidence she wished to present, her Honour took time to explain some aspects of the proceedings to both parties. During the course of that explanation, her Honour set out the basis upon which she had received the defendant’s statement into evidence.

The statement of Mr Ekblad has been tendered as exhibit 1 and the statement of Ms Ekblad has been tendered as statement, exhibit 4, because Ms Ekblad was intending to ask Mr Ekblad some questions and it was important that the court understand what the position was with the defendant so that the court could have some input into what questions should or shouldn’t be asked. These are sensitive and emotive proceedings, very serious proceedings indeed and both the applicant and the defendant are unrepresented.

39. Turning to the plaintiff, her Honour said,

Now, I’m taking your application at its highest at this stage. I could – I know you probably would want to cross-examine Ms Ekblad on her statement, but I am taking this application on its highest which means I am not breaking down – I can only deal with what is relevant and I am going to give you my view of what weight I’m giving what you’ve raised, but I want you to understand that by calling Ms Ekblad to account in the witness box and having her cross-examined by you is not going to put you in any stronger position than you are now.

40. Her Honour went on to immediately hand down her ex tempore judgment. Although the plaintiff is critical of her Honour for not allowing him to make submissions on the disposition of the matter, and there is theoretical if not practical force in that criticism, neither party was afforded that opportunity, probably because neither could have said anything that could have redressed the complete want of relevant evidence in support of the application.

41. In that judgment, the learned magistrate set out the statutory basis upon which the Court could grant the ADVO, and referred to the evidence placed before the Court relevant to the application. Her Honour specifically referred to s.17 of the Act and the matters she was obliged to, and did, take into account. In a relatively lengthy judgment, given the paucity of evidence, her Honour went to some lengths to ensure that both parties understood the reasons for her refusal to make the order sought by the plaintiff.

The Plaintiff’s Complaint to this Court

42. Were this Court to hear the plaintiff’s complaint to this Court, the matter to be considered is whether the plaintiff was denied procedural fairness during the proceedings in the Local Court such that the decision of the Local Court should be struck out.

43. The plaintiff contends that, in admitting the defendant’s statement, the learned magistrate had “effectively taken charge of the conduct of the plaintiff’s case in a manner inconsistent with his interests” (plaintiff’s written submissions at [12]). That submission overlooks what her Honour said about the use the Court made of the defendant’s statement. It is clear from what her Honour said (extracted above at [38]) that she viewed the statement only to be in the position to properly and appropriately control the nature of the questions put in cross-examination.

44. It should not be overlooked that the court had an obligation to provide some assistance to the parties, given that each were unrepresented and without any legal training or assistance: R v Zorad (1990) 19 NSWLR 91.

45. Equally, a court is not precluded from reading material filed with the court, as the defendant’s statement had been, to inform itself of the evidentiary issues that might arise: R v SY [2004] NSWCCA 297.

46. Whilst her Honour formally received the statement as an exhibit, where arguably it should merely have been marked for identification, it is clear that this was her purpose in asking for and admitting the defendant’s statement at that point.

47. She does not appear to have had regard to its contents in determining the merits or otherwise of the plaintiff’s application.

42. Her Honour expressly stated that, in dismissing the plaintiff’s application, she took his case “at its highest”. The simple fact was that, regardless of anything asserted in the defendant’s statement, the plaintiff had adduced no evidence which was capable of satisfying the statutory test set out in s.16.

43. The only use that her Honour appeared to put Ex. 4 to was as a basis upon which to remonstrate with the defendant about past conduct which, if repeated, her Honour thought could inflame an already tense situation between two bitterly antagonistic individuals. This remonstration was delivered in the context of a judgment that was perhaps founded more on common sense and simple humanity than it was on principles of law and evidence.

44. It is plain that her Honour saw the destructive consequences to the litigants and their child of the way in which the parties were conducting themselves, and hoped to encourage each to behave better. That is no part of her Honour’s role, but the expression by her of her opinions in that regard did not have any impact upon her determination of the application, and nor could it in circumstances where the plaintiff had failed to adduce any relevant evidence to support the necessity of an ADVO being made.

45. Having reviewed the evidence tendered by the plaintiff, I conclude that it was well open to her Honour to find that the plaintiff had not established to the civil standard that an ADVO was necessary. Indeed, no other outcome was possible. Whilst her Honour clearly sought to properly manage the conduct of the unrepresented litigants, this did not lead to a denial of procedural fairness.

46. The plaintiff argued no ground of appeal specific to the order for costs against him made in the Local Court. It must be assumed that he relies upon the same complaint of denial of procedural fairness in that regard.

47. Following the dismissal of the plaintiff’s application, the defendant sought an order for costs in her favour. She tendered and relied upon three invoices from the legal representatives who had represented her in the proceedings (although not at the hearing), amounting to costs in excess of $15,000.

48. The plaintiff was asked for his submissions on the issue of costs, and made such submissions as he thought proper. He concluded his submissions with “That’s all I want to say your Honour” (J13:42). An order was thereafter made in the defendant’s favour, her Honour concluding that the proceedings had been frivolous or vexatious (s.99(3) of the Act).

49. The plaintiff complains that her Honour should have warned him that she was contemplating making an order for costs against him, but that possibility was surely clear as soon as the court entertained the application. There can be no requirement on a court to warn a litigant that it may resolve an application it hears adverse to the litigant. Such an outcome is always possible in any court action, and it is reasonable to assume that the plaintiff would or should have understood that.

50. An order for costs was, after all, one of the two possible orders that the court could have made, they being costs as sought, or application for costs dismissed. The plaintiff was sufficiently aware of the provision of the Act dealing with costs to advise her Honour of it, and that so it could not be said that he was so ignorant on the subject as to have no idea costs could be awarded against him.

51. Although the plaintiff relies upon the fact that he was unrepresented to argue that her Honour was obliged to specifically warn him of the possibility that the court might conclude that his application was frivolous or vexatious, there was no such additional obligation in my view.

52. The nature of the evidence the plaintiff sought to lead in support of his application was such that it was open to her Honour, in my opinion, to conclude that the plaintiff’s application for an ADVO was frivolous, and even vexatious. There was nothing in the evidence relied upon which justified the making of an order, but there was much that was offensive and hurtful to the defendant, such as the opening portions of the plaintiff’s statement referred to at [21] above.

53. In any event, there was no denial of procedural fairness concerning the order for costs, since the plaintiff was given an opportunity to be heard on the defendant’s application.

Other Issues

60. As noted above, there are other issues relevant to the determination of the plaintiff’s claim, being questions of jurisdiction, and leave.

Jurisdiction

61. Section 84(2)(1a) of the Crimes (Domestic and Personal Violence) Act 2007 provides a statutory scheme under which appeals against decisions of the Local Court determining an application for an Apprehended Violence Order lie to the District Court. The existence and effect of the provision was raised with the parties at the hearing in this Court, and submissions were invited.

62. The plaintiff purported to bring action in this Court pursuant to s56(1)(c) of the Crimes (Appeal and Review) Act 2001, by virtue of s.70 of the Local Court Act 2007.

63. Section 56(1)(c) provides:

56 Appeals as of right

(1) The prosecutor may appeal to the Supreme Court against:

(a) a sentence imposed by the Local Court in any summary proceedings, or

(b) an order made by the Local Court that stays any summary proceedings for the prosecution of an offence, or

(c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, or

(d) an order for costs made by a Magistrate against the prosecutor in any committal proceedings, or

(e) an order for costs made by the Local Court against the prosecutor in any summary proceedings,

other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone.

(2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court.

64. Section 70 of the Local Court Act 2007 provides:

70 Appeals

(1) In relation to any order arising from an application notice:

(a) an application for annulment may be made in accordance with Part 2 of the Crimes (Appeal and Review) Act 2001, and

(b) an appeal to the District Court may be made in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001, and

(c) an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (Appeal and Review) Act 2001,

in the same way as such an application or appeal may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.

(2) An application or appeal may not be made under subsection (1) in relation to an order referred to in that subsection if the making of such an application or appeal is prohibited by the Act or law pursuant to which the order was made.

(3) If any other Act:

(a) provides for an appeal to the District Court against an order of the Court under that Act, or

(b) provides for an appeal against such an order without identifying to which court such an appeal is to be made,

such an appeal is to be made to the District Court in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.

(4) If any other Act provides for an appeal to the Supreme Court against an order of the Court under that Act, such an appeal is to be made to the Supreme Court in accordance with Part 5 of the Crimes (Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.

(5) The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act.

(6) In this section, a reference to an order includes a reference to any determination that the Court has jurisdiction to make, and any penalty that the Court has jurisdiction to impose.

65. Section 70 is found in part 4 of the Local Court Act which deals with the ‘special jurisdiction’ of the Court and provides for commencement of proceedings by an application notice.

66. It is clear applications dealing with apprehended domestic violence orders are not civil proceedings as defined by Part 3. Despite a query raised by Basten JA in Franks v Franks [2012] NSWCA 209 as to whether in fact ADVO applications should be regarded as criminal proceedings, without the Court of Appeal expressing a concluded view on the issue, the generally accepted interpretation is that the they do not fall within the criminal jurisdiction of the court: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512.

67. They certainly do not fall within the definition of “criminal proceedings” in s.3 of the Local Court Act 2007, which provides:

criminal proceedings means proceedings against a person for an offence (whether summary or indictable), and includes the following:

(a) committal proceedings,

(b) proceedings relating to bail,

(c) proceedings relating to sentence,

(d) proceedings for the review of a conviction or sentence under the Crimes (Appeal and Review) Act 2001,

but does not include the following:

(e) proceedings on an application for an order under the Crimes (Forensic Procedures) Act 2000,

(f) proceedings on an application for an order, or an application to vary or revoke any such order, under the Child Protection (Offenders Prohibition Orders) Act 2004,

(g) proceedings on an application for an order under Part 16A of the Law Enforcement (Powers and Responsibilities) Act 2002,

(h) applications for an order under section 3E or 3F of the Child Protection (Offenders Registration) Act 2000,

(i) proceedings on an appeal against an order under section 282I of the Fisheries Management Act 1994.

68. Whilst I accept that s.70 applies to an ADVO application and the current matter, that does not resolve the question of jurisdiction. Section 70(1) outlines mechanisms for appeal. It outlines a method as to how an appeal is to be made to each court. It does not, however, prescribe or state what the appropriate jurisdiction for the appeal is. That is, while it states that an appeal to the Supreme Court may be made in accordance with certain procedure, it does not prescribe that the appeal must to be made to the Supreme Court.

69. The ultimate question is whether the appeal lies to this Court pursuant to s.56 of the Crimes (Appeal and Review) Act 2001; or to the District Court.

70. Mr Tyler-Stott acknowledged the right of appeal to the District Court, but argued that it does not preclude the plaintiff’s right to appeal to the Supreme Court. I am not able to accept that submission.

71. Section 70(3) of the Local Court Act 2007 provides:

(3) If any other Act:

(a) provides for an appeal to the District Court against an order of the Court under that Act, or

(b) provides for an appeal against such an order without identifying to which court such an appeal is to be made,

such an appeal is to be made to the District Court in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.

72. The Crimes (Domestic and Personal Violence) Act 2007 provides for an appeal to the District Court. Section 84 is in the following terms.

84 Review and appeal provisions concerning making etc of apprehended violence orders

(1) An application may be made under Part 2 of the Crimes (Appeal and Review) Act 2001 by the defendant for the annulment of an apprehended violence order made by the Local Court or the Children’s Court in the same way as an application may be made under that Part by a defendant for the annulment of a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.

(1A) A person who applied to the Local Court or the Children’s Court for an apprehended violence order may apply to the Court for the annulment of the dismissal of the application for the order by the Court, but only if the person was not in attendance before the Court when the application was dismissed.

(1B) The Local Court or the Children’s Court may grant an application for an annulment made under subsection (1A) if it is satisfied that, having regard to the circumstances of the case, there is just cause for doing so. If such an application is granted, the Court may deal with the application for the apprehended violence order as if the application for the order had not been dismissed.

(2) An appeal may be made to the District Court:

(a) by the defendant against the making of an apprehended violence order by the Local Court or the Children’s Court, or

(a1) by the applicant for an apprehended violence order (or, if the applicant was a police officer, either the applicant or the person for whose protection the order would have been made) against the dismissal of the application by the Local Court or the Children’s Court, or

(b) by the applicant for an order or a defendant against the awarding of costs under section 99 of this Act, or

(c) by a party to an apprehended violence order against the variation or revocation of the order by the Local Court or the Children’s Court, or

(d) by a party to an apprehended violence order against a refusal by the Local Court or the Children’s Court to vary or revoke the order.

(3) An appeal under subsection (2):

(a) may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an application may be made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986, and

(b) may be made only by leave of the District Court in the case of an appeal against the making of an apprehended violence order that was made with the consent of the defendant.

(4) The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act.

(5) For the purposes of this section and the Crimes (Appeal and Review) Act 2001, an order made by a Registrar of a court is taken to have been made by the court.

(5A) Part 6 (Interim court orders) applies to proceedings with respect to an appeal to the District Court under subsection (2) in the same way as it applies to an application to the Local Court or the Children’s Court under Part 4 or 5.

(5B) If the District Court allows an appeal made under this section against the refusal to annul an apprehended violence order and remits the matter to the Local Court or the Children’s Court, the District Court must, unless the District Court is satisfied that it is not necessary to do so, make an interim court order under Part 6 as if an application for such an order had been duly made.

(6) In this section, party to an apprehended violence order means:

(a) the protected person (whether or not the applicant), but only if the protected person is of or above the age of 16 years, or

(b) if the applicant was a police officer, that or any other police officer, or

(c) the defendant.

73. Therefore, as envisaged by s.70(3) of the Local Court Act 2007, s.84 of the Crimes (Personal and Domestic Violence) Act 2001 specifies the District Court as the appropriate jurisdiction in which to pursue an appeal by an applicant against the dismissal of an application for an apprehended domestic violence order.

74. Mr. Tyler Stott additionally contended that it was in the plaintiff’s interests to proceed in the Supreme Court because, in the District Court, the plaintiff faced a risk that the judge hearing the matter would decline to exclude Ex. 4 from evidence.

75. I did not understand that submission.

76. There is always a risk, in any litigation, that the tribunal hearing the matter will decide matters of fact or law adverse to the interests of a party. That risk is the same in whatever jurisdiction proceedings are brought. The existence of that risk does not provide any support for a claimed right to choose the jurisdiction in which a litigant is to pursue an appeal.

77. Mr Tyler Stott referred me to the decision of Button J in the matter of Cunningham v Cunningham [2012] NSWSC 849, where his Honour proceeded on the basis that he did have jurisdiction to deal with an appeal against a costs order connected with ADVO proceedings, made in the Local Court.

78. It has to be noted that the case His Honour was dealing with was different to the present appeal. In Cunningham the only ground of appeal was as to the making of a costs order. There was no appeal against the dismissal of the AVO application.

79. Section 23 of the Supreme Court Act 1970 confers broad jurisdiction on this Court which, it has been held, includes an inherent or implied power to deal with an appeal against an award relating to costs: Bimson Roads & Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827.

80. That this Court has in the past heard and determined appeals against orders for costs provides no support for the plaintiff’s contention that the Court has jurisdiction to hear and determine an appeal of the nature he seeks to bring.

81. The plaintiff further submitted that an application for an ADVO falls within the Special Jurisdiction of the Local Court as it is neither civil nor criminal proceedings. Counsel for the plaintiff argued that, since there was no other action commenced in the Local Court by “application notice”, s.70 must be directed to appeals relevant to apprehended domestic violence orders, or the section would have no work to do.

82. That submission is based on incomplete knowledge of the jurisdiction of the Local Court. There are many such applications, such as those made pursuant to the Crimes (Forensic Procedures) Act 2000.

83. In circumstances where there is a statutory regime governing appeals against orders pursuant to the Crimes (Domestic and Personal Violence) Act 2007 vesting jurisdiction in the District Court, in my view this Court has no jurisdiction to determine the appeal filed by the plaintiff, at least insofar as the refusal of the Local Court to make an ADVO is concerned.

The Question of Leave

84. Even if the Court has jurisdiction as the plaintiff contends, and recognising that there is jurisdiction to deal with the issue of costs, the appeal could only be pursued with the Court’s leave as, in accordance with the regime the plaintiff asserts to be applicable, the summons was filed out of time.

85. Necessarily, the merit of the appeal and of the proposed ground of appeal must be considered when determining the question of leave, as are the extent and reasons for the delay, and the question of any resulting prejudice suffered by either party to the proceedings: Tomko v Palasty (No. 2) [2007] NSWCA 369.

86. When it comes to the delay, it is not the extent of the delay that is significant, but the purported reason for it and the circumstances in which the summons to this court was filed.

87. The material date of the magistrate’s decision was 8 April 2014. The plaintiff contended that, to comply with the applicable rules, the appeal was to be lodged within 28 days, that is, by 6 May 2014. Having been filed on 3 June 2014, the appeal was some weeks out of time.

88. Mr Tyler-Stott submitted that the reason for the delay was the delay in obtaining proper legal advice. He submits the plaintiff lodged the appeal to the District Court without the benefit of the transcript and legal advice. It is only after counsel was briefed that the plaintiff was given legal advice, incorrect in my view, that the more appropriate avenue was to pursue the matter in the Supreme Court.

89. That explanation of delay is not persuasive.

84. The plaintiff had an appeal on foot in the appropriate jurisdiction. He had filed that appeal within applicable timeframes even though he was without legal representation and assistance, and even though no transcript would have been available to him. That he was able to take appropriate action to obtain appellate review in the District Court does not support the submission made in this Court that an extension of time should be granted because of the absence of a lawyer or a transcript.

85. The plaintiff chose to withdraw a properly constituted appeal to the District Court because he considered his prospects of success to be greater in this Court, despite the issue of leave.

86. I do not regard that history as providing an adequate explanation for the delay, or mitigating in favour of a grant of leave.

87. The defendant submitted that she was disadvantaged by the delay. She had appeared in the District Court as respondent to the plaintiff’s appeal, and had incurred costs in the process. She submitted that, to permit the plaintiff to appeal in this Court would mean that those costs were thrown away. Had the matter proceeded in the ordinary way in the District Court, it is likely that the appeal would have been determined well before judgment could be given in this Court.

88. Those considerations weigh against a grant of leave.

89. For the reasons considered above, I regard the appeal against the decision of the Magistrate to refuse an ADVO to the plaintiff as unmeritorious. Nor do I consider the plaintiff’s contention that he was denied procedural fairness in relation to the making of the costs order as being an argument which has merit. That also weighs against a grant of leave.

90. Leave to appeal should not be granted.

91. Insofar as it is necessary to do so, having regard to the jurisdictional issue, the summons is struck out.

ORDERS

1. Leave to proceed on the summons is refused.

2. Insofar as it is necessary to do so, the summons is struck out.

POSTSCRIPT

98. Since orders were made in this matter the plaintiff has sent a number of, usually very lengthy, e-mails to my Chambers. These e-mails have sought to debate the orders made by the Court, and to make allegations against the defendant and, in a thinly veiled way, the Court. I regard it as entirely inappropriate for litigants in proceedings before the Court to communicate with my Chambers in this way. In that regard, I agree with the views and comments of Robb J in the matter of Vincent Francis Stanizzo v Muhammad Badarne & Ors [2014] NSWSC 689, warning against inappropriate communications to chambers via e-email.

99. Copies of all e-mails have been placed with the Court’s file and have been provided to the defendant.

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Decision last updated: 07 May 2015