Lacroix v Lacroix

[2015] TASSC 42

[2015] TASSC 42

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Lacroix v Lacroix [2015] TASSC 42

PARTIES:  LACROIX, Adrian
  v
  LACROIX, Chantelle

FILE NO:  196/2015
DELIVERED ON:  3 September 2015
DELIVERED AT:  Hobart
HEARING DATE:  31 August 2015
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Other pre-hearing procedures – Notice to accused of court appearance – Necessity – Respondent before court on application to extend operation of order – Advised of imminent application for fresh order – Sealed copy of new application not served.

Family Violence Act 2004 (Tas), s 31(7).
Justices Act 1959 (Tas), s 110(2)(ab).
Aust Dig Magistrates [1106]

REPRESENTATION:

Counsel:
             Applicant:  R J Broomhall
             Respondent:  J Bourke
Solicitors:
             Respondent:  Blissenden Lawyers

Judgment Number:  [2015] TASSC 42
Number of paragraphs:  31

Serial No 42/2015

File No 196/2015

ADRIAN LACROIX v CHANTELLE LACROIX

REASONS FOR JUDGMENT  BLOW CJ

3 September 2015

1. This is a motion for the review of a family violence order made by a magistrate, Mr S Mollard.  The course of the proceedings before him was quite unusual.  Mr Lacroix contends that he was denied procedural fairness.

2. The order in question was made on 5 March 2015.  On 7 March 2014 an earlier family violence order was made against Mr Lacroix, for the protection of Ms Lacroix, by a magistrate.  That order was made by consent.  Mr Lacroix made no admissions on that occasion as to the conduct that Ms Lacroix complained of.  The magistrate ordered that that first order was to remain in force for a period of 12 months. 

3. On 23 February 2015 Ms Lacroix made an application for an extension of the first family violence order. By virtue of s 20(3) of the Family Violence Act 2004, a court may not entertain an application for the extension of a family violence order "unless satisfied that there has been a substantial change in the relevant circumstances since the order was made or last varied". The written material submitted with the extension application did not suggest that there had been any such substantial change.

4. The extension application came before the learned magistrate on 5 March 2015.  Both parties were represented by counsel.  Counsel for Mr Lacroix, Mr Chopping, told the learned magistrate that any extension would be opposed, and that it was contended that there was no proper basis for an extension.  The magistrate invited Ms Lacroix's counsel to reconsider her application and file a different one.  He suggested that she lodge an application for a new family violence order, and then make an oral application to revoke the existing one, so that he could consider the issues in the light of any information disclosed in an application for a fresh order.  Counsel for Ms Lacroix indicated that she would do that.  The magistrate then said, "Mr Lacroix heard me say that, so he's effectively on notice that that may well occur in the course of the morning and taking care of the service requirements [sic]." 

5. After that Ms Bourke left the courtroom, went downstairs, completed a fresh application for a family violence order, and filed it. 

6. Meanwhile Mr Lacroix left the courtroom and sent Mr Chopping a text message thanking him for his work that morning, and telling him that he was not authorised to accept service of any documents on his behalf.  Mr Lacroix showed that message to Ms Bourke after it had been sent.  It appears that, having been thanked for his services, Mr Chopping left the courthouse.  It appears that Mr Lacroix was trying to outwit Ms Bourke, and possibly also the learned magistrate, with a view to creating a situation whereby an application against him could not be dealt with on its merits that day.

7. Ms Bourke returned to the courtroom.  Mr Lacroix had gone.  Mr Bourke told the magistrate that she had filed an application for a fresh family violence order; that Mr Lacroix had instructed Mr Chopping that he was not to accept service; and that Mr Chopping had left.  She continued:

   "So my application [would] be for the matter to adjourn so I can organise personal service of Mr Lacroix, and/or interim …".

1. At that point the learned magistrate interrupted her and said:

   "Well I'm not sure that you need to trouble to do that.  Why don't you let me have the morning break which I'll take before very long to read the material and in the circumstances I might very well think that it's appropriate to make a final order if I make an order.  Mr Lacroix was very clearly on notice that this matter was going to be lodged in the course of the morning."

2. Subsequently the learned magistrate dealt with the new application in the absence of Mr Lacroix and Mr Chopping.  Ms Bourke sought a final order, as distinct from an interim order, and proposed that it be an order of 12 months' duration.  The learned magistrate commented that the matters Ms Bourke was relying upon "might suggest that the problem relied upon here is likely to be of longer duration".  Ms Bourke reconsidered her position and asked for an order that would operate for two years.  The learned magistrate proceeded to revoke the order of 7 March 2014 and to make a fresh final order, to remain in force until midnight on 5 March 2017, in the same terms as the order that it replaced. 

3. Mr Lacroix, as I have said, contends that he was denied procedural fairness.  In particular, he contends that the learned magistrate should not have considered making a fresh family violence order because he had not been served with a sealed copy of the new application filed by Ms Bourke.  His contentions are based on common law authorities concerning natural justice and procedural fairness, and on certain legislative provisions.  I will consider the common law duties of the magistrate first.

Duties imposed by the common law

1. The applicant, Mr Lacroix, relies on the common law rule of natural justice that is known as the audi alteram partem rule. Those Latin words mean "hear the other side". I accept that, in the circumstances of this case, that rule obliged the learned magistrate to give Mr Lacroix a reasonable opportunity to be present at the hearing of the application, a reasonable opportunity to arrange legal representation, and opportunities at the hearing to make submissions, dispute allegations of fact, question witnesses, give evidence, call witnesses, adduce documentary evidence, and make an application for an adjournment if that were appropriate.

2. Mr Lacroix was present in court, with his counsel, when the learned magistrate and Ms Bourke discussed the proposal that there would be a fresh application for a family violence order, and that the learned magistrate would deal with that application later that day.  As a result of being at court with a lawyer when that proposal was discussed, Mr Lacroix had an opportunity to remain at court, to instruct his counsel to appear on the hearing of the new application, and to participate fully in the hearing.  The evidentiary material relied upon by Ms Lacroix for the new application was identical with the evidentiary material that she proposed to rely upon for the extension application. Mr Lacroix's counsel had been instructed to appear on the hearing of the extension application, which did not proceed, and had appeared in readiness for that hearing.  I therefore infer that he was available, if instructed, to appear on the hearing of the fresh application that replaced the extension application. Mr Lacroix, personally or through his counsel, could have obtained a copy of the fresh application either from Ms Bourke or from the court staff.  In the circumstances, I am satisfied that the learned magistrate's common law duties under the audi alteram partem rule did not require him to do anything further to give Mr Lacroix an opportunity to oppose the new application.

3. As Pearce J observed in Streets v Lucas [2013] TASSC 45 at [26], "The content of natural justice varies from case to case." Similarly, in Russell v Duke of Norfolk [1949] 1 All ER 109, Tucker LJ said at 118:

   "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."

4. There was no change in the date or place of the hearing. There was no change in the evidence relied upon. The only significant change was that Ms Lacroix, instead of seeking to be protected by an old order with its operation extended under s 20 of the Family Violence Act, had decided instead to seek to be protected by a new order under s 16 of that Act. The common law duty of procedural fairness embodied in the audi alteram partem rule did not require the magistrate not to proceed unless and until Mr Lacroix had been served, apparently against his will, with a sealed copy of the new application.  He had been told what order was to be sought, when, where, and upon what evidence, in circumstances in which a properly prepared legal practitioner was available to appear as his counsel. In all the circumstances, there was nothing unfair about the learned magistrate proceeding when he and his counsel – by then his former counsel – were not present.

5. Counsel for the applicant relied on Streets v Lucas (above) in his submissions to me.  That case concerned an application to a magistrate by a landlord for the recovery of possession of rented residential premises.  Pearce J held that there was nothing in the Residential Tenancy Act 1997 that empowered a magistrate to make a final order in the landlord's favour without notice to the tenant. In the passage relied upon, at [31], he said:

   "Nevertheless, there is no legislative authority permitting the making of an order finally determining the rights of a person who is a necessary party to a proceeding without service of the proceeding on that person. Although a court in some circumstances may make an interlocutory order without service on a party, for example an urgent ex parte interlocutory injunction, the circumstances in which such orders are made are carefully limited. This was not an interlocutory order.  It was an order which, subject to appeal, finally determined Mr Streets' contractual and legislative rights."

6. That was not a case about the necessity or otherwise of formal service.  The tenant had been served with the relevant application.  No question arose as to whether informal notification, as distinct from formal service of an application, could sometimes be sufficient.  His Honour's comments can therefore not be regarded as relevant to any such question.  That case must be distinguished on that basis.  It is not authority for the proposition that, in the absence of a specific legislative provision, formal service of originating process is always essential to the making of a final order.

Legislative requirements

1. Counsel for Mr Lacroix relied on s 106E of the Justices Act 1959. That section contains provisions relating to the service, hearing and determination of applications for restraint orders. By virtue of definitions in ss 3(1) and 106A(1) of that Act, a "restraint order" is an order made under s 106B of that Act. Family violence orders are not made under that section. They are made under s 16 of the Family Violence Act. There is nothing in either of those two Acts that requires the provisions of the Justices Act relating to restraint orders to apply in relation to applications for family violence orders. Section 106E is therefore irrelevant.

2. Counsel for the applicant also relied on r 54N(1)(a) of the Justices Rules 2003. That provision is in Pt 9B of those Rules, which applies to proceedings under the Family Violence Act.  The provision reads as follows:

   "(1)  A person making an application is to, as soon as practicable after it is filed with the clerk, cause a sealed copy of the application to be served personally on —

   (a)  in the case of an application for an FVO or an application for a variation to, or extension or revocation of, an FVO, on [sic] all other parties to the application …".

3. However that provision does not say that an application for a family violence order has to be served before the order may be made.  It only says that a sealed copy of the application has to be served personally "as soon as practicable after it is filed with the clerk".  In this case, it appears that a sealed copy of the application was served on Mr Lacroix on 11 March 2015 together with the order that had been made in his absence.  Rule 54N(1)(a) was therefore complied with.

4. The application in question was made under Pt 4 of the Family Violence Act. Section 31(7) of that Act provides as follows:

   "(7)  If the court hearing an application under Part 3 or 4 is satisfied that —

   (a)  a sealed copy of the application has been served on the respondent to the application; or

   (b)  reasonable attempts have been made to serve a sealed copy of the application on the respondent —

   the court may proceed in the absence of the respondent and may —

   (c)  make the FVO sought in the application or such other order as the court considers necessary; or

   (d)  ...".

5. That subsection implies that, when a sealed copy of an application for a family violence order has not been served, a magistrate may not proceed unless reasonable attempts have been made to serve one. It is therefore necessary to consider whether Ms Bourke made reasonable attempts to serve Mr Lacroix with a sealed copy of the application that she filed on the day in question. When an application for a family violence order is filed, copies are routinely made and sealed for the purposes of serving the respondent to the application and for the purpose of the completion of a memorandum of service. I infer that, immediately after filing the application, Ms Bourke had a sealed copy of it to give to Mr Lacroix and would have given it to him if he had not gone away. Since Mr Lacroix had been at the court, and was aware of the nature of the application, where it was to be heard, and approximately when it was to be heard, I am satisfied that Ms Bourke had taken every reasonable step for the purpose of serving a sealed copy of the application on him. But that is not enough. She had not made an attempt to serve him. And she did not claim that she had made an attempt to serve him. It follows that s 31(7) did not authorise the learned magistrate to proceed in the absence of the respondent, at least in relation to the making of a final order.

6. Under s 23(1) of the Family Violence Act, a magistrate has the power to make an interim family violence order at any stage during proceedings under Pt 4. The learned magistrate therefore had the power to make an interim order under that subsection. By virtue of s 23(4), such an interim order may be made in the absence of the person against whom it is made. Since s 23(1) authorises the making of an interim order at "any stage during proceedings", it is clear that such an order may be made before service of any documents on the respondent to an application. However the learned magistrate went further than s 23 authorised, and made a final order.

7. Counsel for the applicant drew my attention to s 15 of the Family Violence Act.  That section begins as follows:

   "(1)   An application for an FVO is to be made to a court.

   (2)   An application may be made by —

   (a)  a police officer; or

   (b)  an affected person; or

   (c)  an affected child, if the court is satisfied that the child is capable of understanding the nature of the proceedings; or

   (d)  any other person to whom leave to apply is granted by a court."

8. When Ms Bourke filed the application in question, she specified herself, not her client, as the person making the application. It was argued that she was not permitted to do that unless the magistrate had granted her leave under s 15(2)(d), and that no such leave had been granted. The applicant's notice to review contains six grounds, some of which contain a number of sub-grounds. None of those grounds contains anything as to a failure to grant leave under s 15(2)(d). Any such failure is therefore irrelevant to the motion to review. Even if this point was relevant to a ground of review, there is no reason why any such failure to grant leave should result in the setting aside of the learned magistrate's decision. It is plain that Ms Bourke's client wanted the magistrate to make the order sought. The client signed an affidavit that formed part of the application, verifying the truth of the facts asserted in it. The fact that the application was made in the name of the legal practitioner, not the client, is therefore an insignificant irregularity. That irregularity did not result in any unfairness or injustice. If no other error were established, the appropriate course would be to dismiss a motion to review based on such a ground under s 110(2)(ab) of the Justices Act, on the basis that no substantial miscarriage of justice had occurred.

Miscellaneous submissions

1. Counsel for the applicant drew my attention to the scope of the orders sought in the application filed by Ms Bourke.  She sought orders in wider terms than those that were in force under the order of March 2014.  However, when she finally appeared before the learned magistrate, he asked her about the scope of the orders sought, she proceeded to explain that she had sought wider orders than the existing ones, and the learned magistrate made his new order in exactly the same terms as the order that it replaced.  The fact that the new application sought wider orders than those that were made is therefore absolutely inconsequential.

2. Counsel for the applicant submitted to me that Ms Bourke had breached an undertaking to serve the new application that she filed. He sought to rely on an affidavit sworn by Mr Chopping for the purposes of the motion to review. Mr Chopping's affidavit was objected to. I received it provisionally, and reserved my decision in relation to the objection.  I have decided that I must admit the affidavit as evidence in order to rule upon, or perhaps I should say debunk, the submission about an undertaking. Mr Chopping said in his affidavit that, after receiving the text message from Mr Lacroix thanking him for his services and instructing him not to accept service of any new application, he showed that message to Ms Bourke while they were both still at the court.  He continued, "Ms Bourke read the text message on my phone and acknowledged its contents, and said words to the effect that she would serve Mr Lacroix personally in the event that any further application was filed."

3. Counsel for the applicant submitted to me that the sentence I have just quoted was evidence that Ms Bourke gave Mr Chopping an undertaking that she would arrange personal service on Mr Lacroix before the fresh application proceeded to a hearing. I disagree. There is nothing in Mr Chopping's affidavit to suggest that Ms Bourke went so far as to give an undertaking, as distinct from telling Mr Chopping what she proposed.  And there is nothing in Mr Chopping's evidence to suggest that Ms Bourke made any promise or representation to him as to when she would serve the proposed application, nor as to her not proceeding unless and until the new application had been personally served on Mr Lacroix.  By proceeding to seek and obtain a final order after Mr Lacroix had gone away, she did not breach any undertaking or promise or act unfairly in any respect. 

4. Counsel for the applicant relied on the decision of Tennent J in McLean v Kemp [2005] TASSC 100. That was not a case about procedural fairness. It concerned an application to vary a family violence order by consent, which a magistrate had refused after hearing submissions in opposition from a police prosecutor. It has nothing to do with the issues in this case at all.

Conclusion

1. The learned magistrate made only one error that is relevant to the applicant's grounds of review. He erred by proceeding to make a final family violence order when, because a sealed copy of the application had not been served on Mr Lacroix and no attempt had been made to serve one on him, s 31(7) did not authorise him to proceed that far. However, in my view, no substantial miscarriage of justice resulted because Mr Lacroix had notice of the application, when and where it would be made, and the evidence to be relied upon, and had come to court with a lawyer for the purpose of defending a substantially similar application. There was no procedural unfairness.

1. I have already referred once to s 110(2)(ab) of the Justices Act. It provides that, on the hearing of a motion to review, this Court may do the following:

   "(ab)   in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion".

2. Because there was no denial of procedural fairness to the slightest degree, and no substantial miscarriage of justice has resulted, I consider that this is an appropriate case in which to do what s 110(2)(ab) authorises. I have therefore decided to dismiss the motion to review.