LE v SX - [2017] ACTCA 34

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	LE v SX
Citation:	[2017] ACTCA 34
Hearing Date:	8 August 2017
DecisionDate:	10 August 2017
Before:	Murrell CJ, Burns and Elkaim JJ
Decision:	The application for leave to appeal is dismissed. The appellant is to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal against an interlocutory decision – procedural fairness – entitlement to be present.
Legislation Cited:	Supreme Court Act 1933 (ACT) s 37E
Cases Cited:	ES v Director-General of Community Services Directorate (No 2) [2016] ACTSC 7 House v R (1936) 55 CLR 499 JL v Director-General, Community Services Directorate [2015] ACTSC 24 LE v SX [2015] ACTSC 79 LE v SX [2016] ACTSC 107 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597
Parties:	LE (Appellant) SX (Respondent)
Representation:	Counsel Mr S Pilkinton SC (Appellant) Self-represented (Respondent)
Solicitors Self-represented (Appellant) Self-represented (Respondent)
File Number:	ACTCA 46 of 2016
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Mossop AsJ Date of Decision: 26 August 2016 Case Title: LE v SX (No 3) Citation: [2016] ACTSC 243

THE COURT:

Background

This matter started in the ACT Magistrates Court. The applicant (the appellant in this Court) applied for a domestic violence order. The application was dismissed by Magistrate Boss on 27 May 2014.

The appellant lodged an appeal with the Supreme Court. The appeal was out of time, requiring an application for an extension of time.

The application was heard by Mossop AsJ (as he then was) on 5, 6 and 17 March 2015. The decision was given on 11 May 2015 (LE v SX [2015] ACTSC 79). His Honour dismissed the application and made no order as to costs. Leave was given to either party to seek a different costs order.

The respondent made an application for costs. That application came before his Honour on 5 June 2015. It seems to have been listed at 9.15am. There was no appearance for the appellant. The appellant’s name was called outside the Court. The matter was stood down until 9.30am.

At 9.31am, the appellant’s name was again called outside the Court. There was no appearance for the appellant. The respondent’s solicitor asked for a costs order in favour of her client. After giving reasons, his Honour made the following order:

Orders 2 and 3 made on 11 May 2015 are discharged and substituted with a new order 2 which is that the applicant is to pay the respondent’s costs of the application.

The Court adjourned at 9.40am. The appellant then arrived at Court and his Honour was notified. His Honour returned to Court at 11.26am. His Honour informed the appellant that he had dealt with the matter in her absence and then said:

I assume you wish to say something in relation to the issue of costs.

His…

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 LE v SX

Details

AGLC: LE v SX [2017] ACTCA 34
Case: [2017] ACTCA 34
Decision Date: 10 August 2017

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal against an interlocutory decision made in the Supreme Court of the Australian Capital Territory. The parties involved were LE (the appellant) and SX (the respondent). The core of the dispute revolved around allegations of a denial of procedural fairness, specifically concerning the appellant's entitlement to be present during certain proceedings.

The primary legal issue before the Court of Appeal was whether the appellant had demonstrated sufficient grounds to be granted leave to appeal the interlocutory decision. This required the Court to consider whether the original decision involved a question of law, whether that question was of general importance, or whether the interests of justice otherwise required the granting of leave. The Court also had to assess whether the appellant had been denied procedural fairness in the proceedings below.

The Court of Appeal ultimately dismissed the application for leave to appeal. While the specific reasoning for the dismissal is not detailed in the provided text, the outcome indicates that the Court found no compelling reason to grant leave, suggesting that either no arguable point of law of general importance was raised, or the interests of justice did not warrant an appeal against the interlocutory decision. The Court also ordered that the appellant pay the respondent's costs of the appeal.

Orders

Orders of the court

The application for leave to appeal is dismissed. The appellant is to pay the respondent’s costs of the appeal.

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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