LE v SX
[2015] ACTSC 79
•11 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | LE v SX |
Citation: | [2015] ACTSC 79 |
Hearing Dates: | 5, 6, 17 March 2015 |
DecisionDate: | 11 May 2015 |
Before: | Mossop AsJ |
Decision: | See [115] |
Category: | Interlocutory application |
Catchwords: | APPEAL – Application for extension of time in which to bring an appeal from the Magistrates Court – where explanation for the failure to lodge appeal within time does not fully explain the delay – where there is an arguable ground of appeal – where findings relied upon by Federal Circuit Court pursuant to s 69ZX(3) of the Family Law Act 1975 (Cth) ‑ where prospects of obtaining a different result on appeal poor – application dismissed |
Legislation Cited: | Domestic Violence and Protection Orders Act 2008 (ACT) ss 96-100 Family Law Act 1975 (Cth) s 69ZX(3) |
Cases Cited: | BL v SL and NM [2011] ACTSC 53 Briginshaw v Briginshaw (1938) 60 CLR 336 |
Texts Cited: | Cross on Evidence, Australian Edition (Looseleaf) at [5125] |
Parties: | LE (Applicant) SX (Respondent) |
Representation: | Counsel: Self-represented (Applicant) Mr J Lawton (Respondent) |
| Solicitors: Self-represented (Applicant) Farrar Gesini Dunn (Respondent) | |
File Number(s): | SCA 1 of 2015 |
Publication Restriction: | Yes – identity of parties, identity anyone related to or associated with a party, and identity of witnesses (see s 111 of the Act). |
Introduction
This is an application for an extension of time in which to bring an appeal from a decision of the Magistrates Court given on 27 May 2014 dismissing an application for a domestic violence order (DVO).
Principles to be applied
Section 96 of the Domestic Violence and Protection Orders Act 2008 (ACT) (the Act) identifies that the refusal of the Court to make a protection order is an appealable decision. Sections 97 and 99-100 of the Act provide:
97 When can someone appeal to Supreme Court?
(1)A person may appeal to the Supreme Court against an appealable decision if the person was a party to the proceeding in which the decision was made.
(2)The person must file a notice of appeal (the notice of appeal) with the Supreme Court not later than 21 days after—
(a)if the appealable decision was the making or amending of a protection order and the respondent was not present when the protection order was made or amended—the day the protection order or amendment is served on the respondent; or
(b)in any other case—the date of the order.
(3)However, the Supreme Court may allow a person to file a notice of appeal after the period mentioned in subsection (2) if satisfied that it is appropriate to do so.
...
99 Evidence on appeal
In an appeal, the Supreme Court must consider the evidence given in the proceeding from which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.
100 Powers of Supreme Court on appeal
On an appeal, the Supreme Court may—
(a)confirm, reverse or amend the decision or order appealed from; or
(b)make the decision or order that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c)set aside the decision or order appealed from, completely or partly, and remit the proceedings to the Magistrates Court for further hearing, subject to the directions the Supreme Court considers appropriate.
Section 97(3) of the Act permits the Court to allow a person to file a notice of appeal outside the 21 day period provided for in s 97(2) if it considers that it would be “appropriate to do so”. In DPP (ACT) v Martin (2014) 286 FLR 120 at [159] the Full Court of the Supreme Court summarised the principles relating to the granting of an extension of time in circumstances where, as here, the statutory provision permitting extension does not impose particular conditions upon the grant of an extension of time. The Court summarised the approach to be taken as follows:
159.The governing principle is that legislative time limits are not to be ignored. Applications for extension of time will only be granted where it is proper to do so. It will be proper to do so only where it is fair and equitable in the circumstances. It is up to the applicant (here the Director) to persuade the Court that it would be fair and equitable to extend the time. In summary, the following non-exhaustive considerations, drawn from Jess v Scott and Hunter Valley v Cohen, bear upon the exercise of the discretion:
(1)The length of the delay;
(2)Whether there is an acceptable explanation for the delay;
(3)Whether the case raises questions of general importance;
(4)The extent of any prejudice to the defendant, including any prejudice in defending the proceedings that is caused by the delay, although absence of prejudice alone is not sufficient to justify a grant of an extension;
(5)Whether the interests of third parties have been affected;
(6)The wider public interest;
(7)The merits of the substantive application.
160.It is important to bear in mind, however, as Burchett J put it in Pozniak v Minister for Health (1986) 9 ALN 256 at 256, that these considerations are “signposts to guide the court’s discretion”, not “fences to limit the breadth of the field”.
While that summary of principles was in the context of an application to extend time in which to bring judicial review proceedings, in my view it is equally applicable in the present case in determining whether it is “appropriate” to extend time.
Refshauge J summarised the approach to be taken to whether to grant leave to appeal out of time in similar terms in Dewson v Macdonald [2014] ACTCA 39 at [9]. One of the points made by his Honour was that “the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.” Although that was an application in relation to a criminal appeal, the summary set out and, in particular, the passage quoted, is equally relevant to the application in the present case.
In so far as it is relevant, for the purposes of the application for further time in which to file an appeal, to have regard to the merits of the substantive application, it is necessary to understand the nature of an appeal which could be brought from the decision of the Magistrates Court. The following propositions are relevant.
(a)An appeal brought pursuant to s 97 of the Act is by way of rehearing: s 99-100; GJ v AS [2014] ACTSC 189 at [96]-[109].
(b)The principles are applicable to a rehearing were summarised by Rares J in Lukatela v Birch (2008) 223 FLR 1 at [21]-[24] and I adopt that summary. In Goreski v de Costa and AAMI [2014] ACTSC 233 at [7] Murrell CJ said:
The appellate court must conduct a “real review”, weighing conflicting evidence, and drawing its own inferences from the undisputed and established facts, but bearing in mind the advantages of the primary judge in relation to fact-finding (including a great advantage in assessing the credibility of witnesses): Warren v Coombs (1979) 142 CLR 531 at 551, Fox v Percy (2003) 214 CLR 118 at 127-128.
(c)Because the decision to grant a protection order is a discretionary one, the principles in House v The King (1936) 55 CLR 499 at 504-505 may be applicable in an appeal to the extent that the decision below involves the exercise of discretion.
(d)In relation to the potential admission of additional evidence on any appeal, the principles to be applied are set out in the Court of Appeal decision in Teo Tran t/as Canberra Direct and as Canberra Mailing v Calvista Australia Pty Ltd [2010] ACTCA 5 at [25]-[30] and Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2014] ACTCA 32 at [27]-[32].
The proceedings below
The proceedings were commenced on 25 February 2014 when the applicant, LE, applied for a DVO against her previous partner, SX. An interim order was made on that date. The application for a final order was heard on 27 May 2014. Mr N, a solicitor, appeared for LE and Mr Gill of counsel appeared for SX. The transcript of the proceedings extends over some 86 pages.
LE gave evidence-in-chief relating to a number of incidents, the details of which are as follows.
(a)The first was the incident which occurred shortly prior to the application for an interim order. LE said that she had attended a ballet school and was waiting there when SX followed her and their daughter to an upper level of the building and stood staring at them from the other side of the room. LE gave evidence that she observed her child staring at the floor and that her daughter was “very scared and she was frightened”. LE said that she paid the fees for her daughter’s ballet lessons and went downstairs to the car with SX so that he could collect some items. LE said that SX “stood over [her], extremely close”. She said SX followed her around the car and then “he grabbed the bag out of [her] hands and left”. I will refer to this as “the ballet school incident”.
(b)The second incident occurred the next day when LE was driving out of Canberra past the Eaglehawk Resort. She noticed that SX was driving on the same road and “followed me maybe half an hour which was, you know, pretty strange”. I will refer to this as the “Eaglehawk following incident”.
(c)The third incident occurred the next morning when LE took her daughter to school and she saw SX on a raised area looking down at her. The evidence was that her daughter was “very scared again”. I will refer to this as “the school incident”.
(d)The fourth incident occurred at the time of the couple’s separation in 2010. LE’s evidence was that she recalled the incident to have occurred on 1 December 2010. It occurred at what had been the couples’ residence. SX appeared at the house when LE thought he was overseas. LE said that SX dragged her out onto the hallway upstairs, sat on top of her and started to grab her hair and “smash the back of [her] head on the floor”, hit her in the ear and push his hand onto her face. Her lip split and started to bleed, as did her nose. She left the house shortly afterwards. I will refer to it as “the December 2010 incident”.
(e)The fifth incident occurred some time before 11 January 2011. LE’s evidence was that she went upstairs to collect some items and when she was holding her baby daughter SX came and hit her in the ear with a closed fist and said, “nobody will ever believe you”. She then went to leave and, as she was putting her child in the car, he came to pull her out. Her mother saw her being pulled from the car. I will refer to this as “the collection incident”.
(f)The sixth incident occurred on an occasion when LE was picking up her two children from SX’s house. SX grabbed LE’s arm, bruising it, and threw her son’s school bag in a pile of mud. She estimated that was approximately eight months after the earlier incidents. She said there was a photo of the bruises on her arm but it had been destroyed. I will refer to this as “the bruised arm incident”.
(g)The seventh incident was an unpleasant incident involving LE and SX’s girlfriend.
(h)The eighth incident was described by LE as being “parked in” by SX at the Canberra Girls Grammar School and receiving some threatening messages on her phone. There was an objection to the evidence given about the content of those messages because they were not to be produced and put into evidence.
(i)The ninth incident described by LE was a combination of three incidents in March 2014 when SX drove past her in his vehicle and one which occurred near the federal courts building in Canberra. Her evidence about these incidents was non-specific and lacked detail. I will refer to them as “the March following incidents”.
LE was first cross-examined over the ballet school incident. The evidence was consistent with LE being intimidated by being in the presence of SX, but she was not able to demonstrate any action on SX’s part that could reasonably objectively be seen to be harassing or offensive and, hence, within the broad definition of “domestic violence” in s 13 of the Act. There was no physical contact and no inappropriate words spoken. However, she denied that when collecting the items at the car “[SX] maintained some distance from [her]”. She agreed that she had applied for an interim DVO describing the incident at the ballet class as “[SX] was harassing and threatening towards me”.
The cross-examination in relation to the December 2010 incident was based upon an affidavit filed by LE for the purposes of family law proceedings. The affidavit identified that LE had reported the incident and applied for housing assistance on 2 December 2010. It was also based upon what became Exhibit B (Exhibit 12.2 in these proceedings), which was a document from the Commissioner for Social Housing’s file that recorded that LE had made an application for housing assistance on 2 December 2010. That document also recorded,
[LE] and her two young children attended the Gateway Services on 7 December 2010 very distraught. [LE] claimed that she is now homeless after escaping domestic violence from her partner.
In cross-examination LE resisted the suggestion that the incident definitely occurred on 1 December 2010. She said “it was within a few days”. She repeated the proposition that she was assaulted soon after SX returned from overseas. She said, “So I’m not sure. It was within a few days. Does it matter?” It was suggested to her that she was backing away from the 2 December 2010 date because she realised that SX could not have been there on 1 December 2010, having been either overseas or on a plane returning from overseas.
She was then cross-examined about various aspects of a family law dispute between her and SX and, in particular, about conduct relating to disputes over their child. She was then cross-examined about the orders that were in place as a result of interim orders made by a Federal Circuit Court judge in relation to the residence and schooling of their daughter. That was done with a view to demonstrating that the application for a DVO was only brought in the immediate aftermath of adverse interim decisions by the Federal Circuit Court judge. She was also cross-examined about her limited disclosure at the ex parte hearing for the interim DVO of the status of the family law proceedings and, in particular, non-disclosure of the interim orders that had been recently made.
LE was also cross-examined on the Eaglehawk following incident. That event was said to have occurred on the Sunday prior to the making of the interim order. The evidence was that LE was followed from Exhibition Park (the location of the Canberra Show) to the Eaglehawk Resort turnoff from the Federal Highway and that she was followed for 20 minutes to half of an hour. The evidence was that she saw SX in the rear vision mirror with his partner and that she clearly saw his face. The incident occurred some time in the afternoon between 2.00pm and 5.00pm.
She was next cross-examined about alleged breaches of the interim domestic violence order, described above as the March following incidents. LE agreed that one incident was said to have occurred at 9.05 am on Tuesday, 4 March 2014 when she was taking her daughter to school. That incident was said to involve SX following her in his vehicle. She said that she observed his face and that he appeared agitated and distracted. He followed her for some distance and then drove past her car and glared at LE and her daughter for a short while before speeding off. LE’s statement to police was tendered and became Exhibit I in the Magistrates Court. She was then cross-examined on a subsequent affidavit filed in the family law proceedings, in which she was less definite about the identification of SX on that occasion.
She was also cross-examined on the other aspects of the March following incidents. LE said that she had seen SX in his car on 6 March 2014 and 7 March 2014. She had also seen his car on 18 March 2013 at the Federal Court building on Childers Street in Canberra, although had not seen him.
In re-examination LE was asked, in relation to the December 2010 incident, whether she was uncertain about the incident having occurred on 1 December 2010. She said:
I’m certain it’s within those few days. I hadn’t even really thought about it in so much detail. I knew it was easily checked with [SX’s] passport when he came back that day. I didn’t even think he would say he wasn’t here.
KE, the mother of LE, also gave evidence in the Magistrates Court. Her evidence was that, at the point when LE separated from SX, “[LE] came and she was bruised or [sic] down the side of her face and her lip was split she was very, very upset and she said he’d lost it and she just couldn’t go back.” She said that she thought the incident occurred in December of 2010. Her evidence was that she was told by LE that “[SX] had lost it and set upon [LE]”.
KE also gave evidence about the bruised arm incident, which occurred while collecting LE’s belongings after the couple had separated. She gave evidence that SX followed LE out of the house and ran after her. She said that she saw SX with his arm around LE and was trying to get her out of the car. The evidence appeared to be that, as a result of this incident, KE observed bruising on LE when they arrived back at KE’s home. She took some photographs of that bruising although they were subsequently lost.
The manner in which this evidence was led gave the impression that what was described related to a single incident, however a careful reading of the transcript of what was said discloses that the evidence was of two occasions, one involving collection of items, the other involving grabbing and bruising which was photographed. The manner in which the date was identified in evidence was confusing in that it was consistent with the grabbing and bruising incident occurring either in late 2011 or late 2010. This was the source of some confusion later in her evidence, as described below.
KE was also cross-examined about an affidavit that she had prepared for the family law proceedings, which described an incident where she and LE were collecting the children from SX’s house after school and where she observed SX grab LE by the arm in a way that appeared to cause LE pain. KE subsequently photographed the incident on her mobile phone. It appears that this incident is the same as the bruised arm incident that LE gave evidence of (see [8(f)] above). I will therefore refer to it as the bruised arm incident.
In re-examination of KE there was some confusion about whether the bruised arm incident occurred at the same time that LE and her mother were collecting items from her former house or whether it occurred substantially later. As pointed out above, the transcript of KE’s evidence-in-chief indicates that the bruised arm incident was said to have occurred later. In re-examination, KE made it clear that there was only one incident involving pulling or grabbing that she had witnessed. That was different to LE’s evidence, which had described the collection incident and the bruised arm incidents as both involving grabbing or pulling observed by KE.
SX was also called and gave evidence about what occurred at the ballet school incident. He described transactions which were inconsistent with any harassing or offensive conduct on his part, notwithstanding that any interaction between the separated parents appeared to be awkward and barely civil. He denied standing over LE.
He next gave evidence relevant to the Eaglehawk following incident. His evidence was inconsistent with having followed LE to the Eaglehawk Resort. Instead he gave evidence that he went to Mawson to eat lunch. Photographs were tendered which were consistent with his evidence which showed his daughter at the Canberra show at 11.47 am and 11.49 am and then at home in Farrer at 2.50 pm. He also gave evidence about what occurred later that day and that he only left the house to go to the park 200m from his home. He denied following LE.
He gave evidence explaining why he had attended his daughter’s school on the Tuesday morning following the visit to the Canberra show (the school incident). He explained that he attended, following an email from LE, to ensure that communications from the school were being sent to both parents.
He also gave evidence in relation to the March following incidents. He specifically denied having followed LE on 4 March 2014. He gave evidence that on 4 March 2014 he was in Melbourne recovering from a hip operation and that he had travelled to Melbourne on 27 February 2014 and returned to Canberra on 7 March 2014. Documents were tendered to corroborate that evidence: a boarding pass for an airline flight to Melbourne on 27 February 2014 and a boarding pass for an airline flight from Melbourne to Canberra on 7 March 2014. Also tendered were a number of EFTPOS receipts and taxi receipts which were consistent with his evidence. He denied following LE in Fyshwick on 6 March 2014 and denied encountering her on Constitution Avenue on 7 March 2014.
In relation to the following incident on 18 March 2014, SX gave evidence that he was on Childers Street near the federal courts building because his partner, KL, was attending a course at a college across the road from the Street Theatre Cafe (which sits adjacent to the federal courts building). He said that he and his partner went into the cafe and had coffee. He said he saw LE’s car pull up behind his car. A document corroborating his evidence about his partner’s participation in a course run by the Australian Institute of Management was tendered (and became Exhibit L). That showed that it was a course scheduled to commence on 18 March 2014 at an address on Childers Street in Canberra.
SX also tendered an email that he had sent to an Australian Federal Police officer on that day at 9:18 am reporting the incident in the same terms as he had given evidence. The email became Exhibit M. He gave evidence that he had sent that email because LE had made allegations to the AFP that he had breached the interim DVO and he was worried that she would make another complaint.
In relation to the December 2010 incident, SX gave evidence that he was on Christmas Island on 1 December 2010. He tendered an itinerary taken from his work email account for his trip from Canberra to Christmas Island and then from Christmas Island back to Canberra. That itinerary showed him returning to Canberra on 3 December 2010. He denied the incident.
During the course of cross-examination there was an objection relating to cross-examination about the December 2010 incident. Her Honour said:
Evidence has been given that it occurred on or about 1 December and it’s been accepted that that date, or a date before that, was what caused the applicant to - according to the affidavit - to go to housing. So it happened sometime in November before 1 December - on or before 1 December that was her evidence.
The confusion about precisely when the bruised arm incident occurred continued at this point. LE’s solicitor cross-examined on the basis that (consistently with LE’s evidence) an incident involving grabbing occurred shortly after the separation, during the collection incident. Counsel for SX said that the evidence was that it occurred one year post-separation upon the handover of the children. There was some discussion between the lawyers and the magistrate about the evidence. SX gave evidence that he had grabbed LE by the arm but that had occurred at about the time they separated. The cross-examination was stopped because the magistrate characterised it as “a fishing expedition” notwithstanding the evidence of LE and evidence given by SX that he had grabbed LE by the arm at about the time of separation. SX denied assaulting LE on or about 1 December 2010. He denied taking her by the arm at any stage since the separation. He said that he had left his vehicle in Canberra when he went to Melbourne and that nobody had driven it. He denied snatching a bag from LE when they went to the car during the ballet school incident.
KL, SX’s partner, also gave evidence. She was asked about the Eaglehawk following incident. She said that she, SX, and his daughter went to the Canberra Show from about 9.30 am until 12.30 pm or 1:00 pm and then they returned to the Mawson shops to have lunch. They then went to Woolworths to buy some groceries and returned home. She denied following LE’s car or at any stage following LE’s car to the Eaglehawk Resort. She gave evidence about participating in a course at a venue near the federal courts building on 18 March 2014 and seeing LE’s car on that occasion.
KL also gave evidence about the ballet school incident, which was inconsistent with there being any intimidating, harassing or offensive conduct on the part of SX, although in cross-examination she made it clear that she did not observe what occurred when items were handed over at the car outside. She was not cross-examined or challenged in relation to her evidence about what happened after the Canberra show or in relation to the March following incidents.
Decision below
The magistrate gave her decision orally at the conclusion of submissions. The reasons extend over three pages of transcript. Her Honour then dealt with an application for costs, during which she made some other comments that give further insight into her reasons.
In summary, her Honour found that the principal incidents of which LE gave evidence did not occur or did not constitute domestic violence. As a consequence, the threshold requirement for the making of an order was not met and her Honour did not need to consider the exercise of her discretion.
Although it is not entirely clear from her Honour’s reasons, when read in the context of the transcript it is clear that she was dealing with six incidents, some of which I have already outlined above. In summary, those were:
(a)the ballet school incident (see [8(a)] above);
(b)the Eaglehawk following incident (see [8(b)] above); and
(c)the December 2010 incident (see [8(d)] above);
(d)the collection incident (see [8(e)] above);
(e)the bruised arm incident (see [8(f)] above);
(f)the March following incidents (see [8(i)] above).
Although these are not all of the incidents of which the plaintiff gave evidence, they fairly reflect the principal bases for the application for the DVO.
When her Honour formally commenced giving her reasons she indicated that she had also made clear some of her concerns during submissions, effectively incorporating those earlier comments into her reasons. During the course of submissions made by counsel for SX, her Honour made the following statements.
(a)She was satisfied that SX was not in Australia on or about 1 December 2010 and did not return until after the applicant had gone to the Commissioner for Social Housing. Although LE had been injured by someone at the time that she went to the Commissioner for Social Housing her Honour could not be satisfied on the balance of probabilities that it was SX who caused that injury.
(b)In relation to the part of the March following incidents that occurred on 4 March 2014, the evidence of SX being interstate, namely the photographs which were tendered and the evidence of KL, was such that her Honour could not be satisfied on the balance of probabilities that SX engaged in that conduct.
(c)In relation to the ballet school incident, her Honour said:
the applicant may well have felt some concern but I’m not sure that I could find on the balance of probabilities that [SX’s] conduct was harassing or menacing. And, certainly, people are not obliged to necessarily to be wholly polite to each other. I think that would be setting the bar far too low. It doesn’t appear to me that that exchange on all the evidence before me was such that it would be appropriate for an order to be made.
(d)She expressed concern about the incident in late 2011 where there was some sort of exchange. She was satisfied that KE “certainly saw something”. On this issue she then heard some additional submissions.
In her reasons her Honour said that LE could not satisfy her on the balance of probabilities that the occasions of which she gave evidence had occurred and, in relation to the March following incidents, it was more likely than not that at the relevant time the defendant was in Melbourne.
Her Honour said that, in relation to the Eaglehawk following incident:
the evidence of [KL] and the timestamp on the photographs appear to corroborate the respondent and [KL’s] version of events on that day, it simply cannot have taken place.
In relation to the aspect of the March following incidents that occurred on 4 March 2015, her Honour found that LE’s evidence that she had actively seen SX glare at her as he drove slowly past “simply cannot be true”, given that SX was in Melbourne.
Her Honour referred to what she described as “perhaps, the most troubling aspect of” LE’s evidence, namely, the December 2010 incident. She recorded that it had been put to LE that she had relied on the incident in affidavits filed for other proceedings as the reason why she sought housing assistance on 2 December 2010. Her Honour recorded that she was satisfied beyond reasonable doubt that SX was on or in transit to and from Christmas Island between 5 November 2010 and 3 December 2010. Therefore, her Honour found that whoever caused the injuries on LE seen by KE, it was not SX.
In relation to the “ballet school incident”, her Honour found that “there [was] nothing truly remarkable or anything in that interaction which really warrants the making of an order”. She found that the existence of unfriendly relations between the parties was a common experience, and although LE may have felt that SX was acting in a way that was in some way detrimental to her, she could objectively see no evidence of that.
Her Honour indicated that the incident that did trouble her was the bruised arm incident, which occurred somewhere in 2011 and was witnessed by KE. Her Honour found KE as a witness of truth, but also that there were some inconsistencies in her description of the incident. She was troubled by KE seeing bruises and recorded that there may well have been something going on in her daughter’s life that she was not aware of. She recorded that the allegation was still an allegation of an assault occasioning actual bodily harm and “something more than a bare balance would be required”. She said:
In the circumstances, and given the nature or the unreliable nature of [LE’s] evidence it seems to me that I cannot be satisfied on the balance of probability, in relation to how that incident occurred.
Her Honour found in any event that even if the incident had occurred, because it occurred so long ago she would not consider it appropriate to make an order based solely on that incident.
In dealing with SX’s application for costs, her Honour said that, in relation to the aspect of the March following incidents that occurred on 4 March 2014 (the “glaring” incident), she was satisfied that LE’s evidence was “lacking in perhaps honesty”. She said that, “some of the accusations I do not believe were made honestly”. In relation to the December 2010 incident, her Honour said she could not “do anything other than find that the attributing of the injuries seen by [LE’s] mother to [SX] is anything other than dishonest”. She was not so sure in relation to the bruised arm incident. She accepted that, in relation to the ballet school incident, LE may have viewed it one way and SX may well have viewed it another. As a consequence, she was not persuaded that there was active dishonesty in relation to either the bruised arm incident or the ballet school incident, although she described LE as having “over [egged] the pudding”. In further explanation her Honour said, “I think [LE’s] case was perhaps lengthened by the fact that I have found necessarily that she has been dishonest about the most serious allegation.”
Her Honour adjourned the proceedings so that the parties could either agree on the quantum of an order for costs under s 117 of the Act or, alternatively, file written submissions. Although it was not in evidence, I understand that a sum was agreed upon. I have assumed that an order was then made by her Honour to give effect to the agreement of the sum although there is no evidence of that.
Evidence on application
The application before me was heard on 5 and 6 March 2015 and mentioned briefly on 17 March 2015. Considerable evidence was led by each party on the application.
LE relied upon the following affidavits:
(a)LE dated 30 December 2014;
(b)LE dated 6 February 2015;
(c)KE, the mother of LE, dated 6 February 2015;
(d)AF, a friend of LE, dated 13 February 2015; and
(e)KT, a friend of LE, dated 4 February 2015.
The affidavit of KE related to the advice given to LE about the availability of an appeal from the magistrate’s decision. The affidavit of AF contained evidence relevant to the December 2010 incident, the ballet school incident, the bruised arm incident and the March following incidents. The affidavit of KT contained evidence relevant to the December 2010 incident and the Eaglehawk following incident. There was no clear explanation as to why AF or KT were not called at the hearing before the magistrate although there was some evidence that KE’s solicitor had made the decision that AF was not required to give evidence.
SX relied upon two of his own affidavits dated 20 February 2015, one of which referred to a substantial book of exhibits. The evidence of SX was responsive to each of the affidavits of LE, KE, AF and KT.
SX also called oral evidence from two lawyers who acted for LE at the time of hearing in the Magistrates Court to give evidence about the advice that had been given to LE in relation to the availability or prospects of an appeal. Both witnesses were cross-examined.
Twelve exhibits were also tendered. They included the transcript of proceedings in the Magistrates Court, the exhibits in that court and a number of documents which would be sought to be tendered on appeal if an extension of time was granted.
A number of subpoenas were issued for the purposes of the application from which numerous documents were tendered. Some documents (in the form of audio recording held by the Australian Federal Police) were produced pursuant to one of those subpoenas after the conclusion of the hearing. I allowed the parties access to those documents and directed that any application to reopen a party’s case be made by 25 March 2015. No application to reopen was made.
(I observe that under the Court Procedures Rules 2006 (ACT) leave is not presently required for the issue of subpoenas for the purposes of either of an appeal or for an application for an extension of time in which to appeal. In my view it is not appropriate that parties be at liberty to issue subpoenas for the purposes of an appeal or application related to an appeal without the leave of the Court. While the issuing of subpoenas may be significant and appropriate in some cases, a requirement for leave would reduce the tendency to treat an appeal or associated application as if it was simply an extension of the trial process after judgment has been given.)
Length of and explanation for delay
The decision of the Magistrates Court was given on 27 May 2014. The application for leave to appeal was filed on 2 January 2015. The delay is therefore approximately 7 months. Having regard to the statutory appeal period of 21 days the extension sought is a significant one.
As an explanation for the delay, the affidavit evidence from LE and KE was to the effect that, at the conclusion of the hearing on 27 May 2014, LE was told by her solicitor that she could not appeal from the decision. Having given evidence of the advice that she was given, I ruled that LE had waived her client legal privilege in relation to the advice that she received. SX called evidence from the two solicitors who acted for LE in the Magistrates Court, who were required by subpoena to attend and give evidence.
The affidavit evidence of LE was that:
... when I left the building after the DVO Application was dismissed on 27th of May 2014 the solicitor who was representing me informed myself and my mother it was not possible to Appeal a DVO. I asked the solicitor specifically about appealing. The solicitor told myself and my mother [KE] words to the effect: “There is no way to appeal a DVO in the ACT, that’s it, it is finished. You have to wait until he hits you again and apply for another one.”
LE said that if she had known at the time that it was possible to appeal she would have done so immediately. She also made various criticisms of the manner in which her case was conducted.
In her affidavit KE said, in relation to the advice received on the day of the Magistrates Court hearing, that one of LE’s solicitors, Ms R, said she was going back to the office and that the other solicitor present, Mr N, said he would meet Ms R at the office. Ms R then crossed the quadrangle in front of the city police station and Mr N, LE and KE began to move towards the car park. KE said that after that,
[LE] and I questioned Mr [N] about the new information that [SX] had produced in the courtroom. We asked if we could check this as it appeared to be wrong, and we specifically enquired about an appeal. We were told, “no” this was not possible and that today was the end of the matter. Mr [N] asked if we wanted to go back to the office and we said in the circumstances we would go home. We were clearly told we had no right of appeal.
The evidence of Mr N was that after the magistrate gave her judgment LE was distressed. He recalled being outside the Court with LE, KE and Ms R. He said words to the effect of, “There’s no prospect of an appeal. [The magistrate] has made very clear findings against your credit and ... I couldn’t recommend an appeal.”
In cross-examination Mr N said that he recalled telling LE that her prospects of appeal were poor, having regard to the way the case unfolded, and that it would not be worthwhile to appeal. He was asked whether it was his usual practice to advise in writing in relation to an appeal and his evidence was that such advice could be given in a letter or given orally, the important issue was that it was given. He denied saying the words alleged by LE, namely, “there is no way to appeal a DVO in the ACT. That’s it. It is finished. You have to wait until he hits you again and apply for another one.” He disagreed with the proposition that he had clearly told her that she had no right of appeal.
In her evidence Ms R recalled a discussion outside the Magistrates Court building about the outcome and what effect that would have on LE’s family law proceedings. She recalled Mr N saying words to the effect of, “well you can always appeal”. In cross-examination she denied having left separately because she had to attend to other work. In re-examination she said that she and Mr N walked back to the office together on the day of the hearing. She recalled that because she had made mental notes about what Mr N and she had discussed on the way back to the office. She said she recalled Mr N saying, “well you can always appeal” because she remembered thinking at the time that she needed to remember that for future reference and also because if she did appeal than it would be very interesting for her because she may get to be involved in the appeal.
Counsel for SX did not seek to cross-examine LE or KE on their affidavits. In the context of an interlocutory application such as the present, involving unrepresented litigants alleging domestic violence, I did not take it that by failing to seek leave to cross-examine these witnesses SX conceded the accuracy of the evidence or that there was any unfairness to the witness in adopting that course even in circumstances where there was a contest over their evidence.
There were obvious differences between the versions of events given by the witnesses as to whether both lawyers were present and as to what was said.
I consider that Ms R, as a relatively junior solicitor, is likely to have a better recollection of events than Mr N. It was the first case of this nature with which she had been involved and she had a particular interest in the possibility of an appeal. While Mr N had no particular reason to remember the post-court conversation and did not have the benefit of his file as to what advice was given, his evidence as to the advice he gave was consistent with the advice that would be given by an experienced solicitor in the circumstances. It is likely that LE and KE were upset at the outcome of the hearing before the magistrate. It is likely that they did inquire as to whether or not an appeal was available.
Having regard to the way in which the trial played out and the reasons given for the decision by her Honour, which were substantially based on her assessment of the reliability and credibility of LE’s evidence, it is likely in my view that Mr N gave advice that as a practical matter it would make no sense for LE to appeal from the decision. That is likely to have been expressed in very clear terms having regard to:
(a)the costs and difficulty associated with overturning a credibility-based finding such as that which had been given;
(b)the availability of remedies under the Act if there was any future incident that amounted to domestic violence; and
(c)the pending hearing in the Federal Circuit Court relating to custody of the parties’ child.
Particularly if it was given in the form given in evidence by Mr N (“there is no prospect of an appeal”) and not followed up with written advice, it would be consistent with the evidence that LE and KE had the impression that no appeal was available. I find therefore that the advice given left LE and KE with the clear understanding that an appeal should not be brought and that they accepted that advice and did not press the issue of whether, notwithstanding that advice, it was technically open to appeal the decision.
There is no evidence as to when LE became aware of the capacity to lodge an appeal from the decision. Thus it is not possible to determine how long she delayed in making the application after she was aware that it was open to do so. However, it is clear that what prompted her to lodge the appeal was the adverse decision of a judge of the Federal Circuit Court on 18 December 2014. One of the reasons that LE seeks to overturn the decision of the Magistrates Court is the effect that the findings in and outcome of the Magistrates Court proceedings had on the Federal Circuit Court decision. I will refer in more detail to the Federal Circuit Court decision below.
Therefore, my conclusion is that, although there is an explanation for the failure to lodge an appeal within the time permitted, it does not fully explain the period of delay in making the application.
Merits of appeal
The decision of the Magistrates Court is summarised above.
Each of the 11 grounds of appeal is lengthy. They have clearly been drafted without the benefit of legal assistance. While I have considered the whole of each of grounds I will endeavour to summarise the critical point made in each.
Ground 1:LE’s solicitor at the time failed to subpoena a file of the Domestic Violence Crisis Service that was significant and failed to call a witness from that service who would have given evidence that a false alibi was provided for the breach of the interim order on 4 March 2014. Although the ground is unclear it may involve a broader allegation of negligence or misconduct.
Ground 2:The magistrate failed to weigh evidence on the balance of probabilities as required by s 16 of the Act and inappropriately applied the Briginshaw standard.
Ground 3:Counsel for SX should not have suggested that the proceedings would adversely affect SX’s employment because it might interfere with his capacity to carry a weapon as part of his employment and the magistrate inappropriately considered this under s 46(1)(d) of the Act.
Ground 4:Natural justice has not been served because the Commonwealth Ombudsman has ordered the AFP to investigate SX in relation to ongoing family violence, a recent notification of abuse filed by the Canberra Hospital, allegations of perjury and perverting the course of justice.
Ground 5:The magistrate failed to properly consider the objects of the Act (s 6) and the principles for making protection orders (s 7) under s 47(1)(a) of the Act.
Ground 6:LE was wrongly accused of dishonesty in relation to the information given to the Magistrates Court relating to family law matters pending during the hearing for the interim DVO.
Ground 7:The proceedings were conducted in a manner inconsistent with s 8 of the Act. (“Procedures under this Act are to be as simple, quick and inexpensive as is consistent with achieving justice.”) This ground refers to aspects of the hearing and contends that the very act of employing a solicitor and barrister at the hearing constituted domestic violence under s 13(1)(a) and (c) of the Act.
Ground 8:The proceedings were inappropriately adjourned on 2 April 2014. The applicant indicates her belief why SX sought the adjournment. She also makes reference to the inappropriateness of recovering costs for “overrepresentation”. It is not at all clear whether this ground relates only to costs and, if not, precisely what it goes to.
Ground 9:The magistrate should have made an order because KE witnessed an incident of physical violence by SX and that incident could have been used to interpret the ballet school incident.
Ground 10:The welfare of LE’s child was not considered because her child was present on “the accepted occasion discussed in court where [KE] witnessed physical violence”.
Ground 11:This ground refers to “several human rights issues associated with the proceedings” but does not properly identify a ground of appeal.
Grounds 3, 4, 5, 7, 8, 10, 11
In my view, grounds 3, 4, 5, 7, 8, 10, 11 would be without merit. That is for the following reasons.
Ground 3:This was not a matter referred to either in submissions or the decision. Because of her Honour’s factual findings it was an issue which did not arise.
Ground 4:The pendency of any investigation by the AFP would not provide a basis for overturning the decision.
Ground 5:A consideration of the objects and principles of the Act would only really arise if a discretionary decision was required to be made. That required domestic violence to be established on the balance of probabilities: s 46(1)(a). It was not. In any event, I am not satisfied that her Honour failed to have regard to those principles in making her decision.
Ground 7:I am not satisfied that the mere engaging of lawyers for the purposes of a hearing could constitute domestic violence and I am not satisfied that there was anything in the manner in which the case was conducted that would amount to domestic violence.
Ground 8.The adjournment of proceedings prior to the final hearing would not provide a basis for overturning the decision unless it amounted to or gave rise to a denial of procedural fairness. If this grounds relates to the costs order, the quantum of that order was, as I understand it, resolved by agreement and on the material available to me there would not be any reasonable ground for challenging an order of the court that gave effect to that agreed quantum.
Ground 10:This is not a ground relevant to the basis on which her Honour dismissed the application.
Ground 11:The existence of “several human rights issues” would not provide a basis for overturning the decision.
Ground 1
Ground 1 is essentially a ground based on competence of representation. In my view, this is a matter which may be relevant to the admission of further evidence on an appeal. It may assist in support of an application to put into evidence on appeal material that was available to be put into evidence at the trial but was not. However, the basis for this ground has not been properly laid. The contents of the file that LE alleges should have been subpoenaed was not in evidence. Nor was it clear what evidence should have been called from the witness from the Domestic Violence Crisis Service. Although not specifically raised in the ground of appeal, there was also no proper evidence to explain the circumstances surrounding the failure to tender documentary material from Commissioner for Social Housing, which I will refer to below.
Grounds 2, 6, 9
Grounds 2, 6, and 9 each relate directly or indirectly to the findings of fact made by her Honour in relation to whether or not she could be satisfied on the balance of probabilities that the incidents occurred.
I am not satisfied that ground 2, relating to the application of the decision in Briginishaw v Briginshaw (1938) 60 CLR 336, is strong. In the light of the manner in which the case was conducted her Honour was obliged to resolve the differences in the evidence between the witnesses. Her Honour was correct to apply the decision in Briginshaw to the allegations in this case. It is not apparent that she misapplied that test by imposing a standard higher than the balance of probabilities.
Grounds 6 and 9 relate to the assessment of the reliability of LE’s evidence. At the hearing of this application LE placed considerable emphasis on documentary material relating to the December 2010 incident. She submitted, in effect, that even if she was incorrect about the precise date of the incident three and a half years earlier, the incident still occurred. She also made submissions concerning the possibility of additional evidence being available to prove that SX was in Canberra at the time when the 4 March 2014 following incident was alleged to have occurred. While those submissions went beyond the grounds of appeal in the draft notice of appeal, I will consider them here as they go to the central issue in the decision below, namely, whether incidents of domestic violence had occurred.
Clearly this was case in which it must be borne in mind that her Honour had the benefit of hearing and seeing the witnesses given evidence and that advantage was a great one. Further, her Honour’s assessment of where the balance of probabilities lay in relation to any one incident was influenced by her Honour’s conclusions on the others. In circumstances where her Honour was required to weigh competing evidence from LE and KE on the one hand, and SX and KL on the other, then that assessment is one which, having regard to the benefits of seeing and hearing the witnesses, will be difficult for LE to demonstrate error.
There was strong evidence before the Magistrates Court that SX was in Melbourne at the time of the Eaglehawk following incident. LE would, on an appeal, seek to read the affidavit of KT, a friend of LE, who deposed to a conversation occurring on 23 February 2014 at around 2:00 pm, during which LE recorded that she was driving to Goulburn and that she could see SX and his partner in the car and they appeared to be following her. In so far as this record of a contemporaneous complaint might be evidence that supported LE’s version of events, there is no explanation as to why it was not called at the hearing. In my view, having regard to the principles set out by the Court of Appeal in Wagdy Hanna and, in particular, the passage quoted in that case from Coulton v Holcombe (1986) 162 CLR 1 at 7, it would be unlikely to be admitted on appeal in those circumstances and where it is likely that the deponent would need to be the subject of cross-examination. Even if it was admitted, having regard to the evidence of SX and KL, corroborated by the photographic evidence of where they were at particular times on that day, there would be poor prospects of overturning the decision on the basis of this evidence.
In the affidavit of AF there was evidence that on the evening of 4 March 2014 she overheard officers of the AFP telling LE that police had gone to SX’s house and that they had spoken to him at his house in Canberra that day about following her that morning. She also said that she overheard the officers telling LE that they needed to talk to their supervisor about what to do because SX was a police officer. She also gave evidence that she had prepared an affidavit for the purposes of the proceedings on 27 May 2014 but was told by LE that the solicitor said she was not required. Once again, having regard to the principles summarised in Wagdy Hanna it is unlikely that this additional evidence would be admitted on an appeal.
I note that it was in relation to this issue (namely, whether or not police met with SX in Canberra on 4 March 2014) that LE subpoenaed the AFP for audio records of transmissions relating to police attendance at SX’s house. This material was produced to the Court on 17 March 2015. I permitted access to both parties and directed that any application to reopen the made by 25 March 2015. No application was made.
Having regard to the objective material available as to SX’s presence in Melbourne, even if the additional evidence of AF was admitted, there would be poor prospects of the Court ultimately reaching a conclusion different to that which the magistrate did.
There is, in my view, a real issue concerning the date of the assault alleged in December 2010. Having regard to the lapse of time since the incident was alleged to have occurred it is likely that any witness would, in attempting to fix the precise date, be reconstructing their evidence on the basis of documents now available. Thus, in assessing any attack on credibility based upon the date of the alleged event, particular care would need to be taken that too great an emphasis was not placed upon an incorrect specification of the date of the event.
LE was successfully cross-examined in order to fix the date upon which she said the assault occurred as 1 December 2010. This was the date which she had included in an affidavit prepared for proceedings in the Federal Circuit Court. It was demonstrated by reference to itineraries and plane tickets that on this date SX was in transit from Christmas Island. It was this that led her Honour to find that at the relevant time SX was not the person who caused injuries to LE.
Among the material that was relied upon in support of the present application were records of the Commissioner for Social Housing relating to LE’s application for housing assistance. Only one of these documents was tendered by the respondent at the hearing in the Magistrates Court. The documents were documents released by the Commissioner to LE’s solicitor under cover of a letter dated 2 April 2014, prior to the Magistrates Court hearing. They therefore appear to have been available to LE at the hearing in the Magistrates Court. The documents were contemporaneous business records kept by the Commissioner and are likely to be reliable records of what was reported by LE at the time.
An application for housing assistance was signed by LE on 5 December 2010. The “received” stamp has been smudged and could easily be read as 2 December 2010. However, having regard to the fact that the document is signed by LE on 5 December 2010 it is more likely that the stamp is dated 7 December 2010. If that is correct then the statement that LE applied for housing assistance on 2 December 2010, which appears in the document that became Exhibit B at the Magistrates Court hearing, is likely to be an error.
The 2 December 2010 date specified in Exhibit B was significant in the chronology because it was only after the alleged assault that LE said she contacted the Commissioner for Social Housing. Hence, if 2 December 2010 was the date of her application and the assault occurred prior to that then it was alleged to have occurred at a time when SX was overseas. If, however the first application was signed on 5 December 2010 and received by the Commissioner on 7 December 2010, then that was consistent with the version of events that LE gave and also consistent with the objective records showing the date upon which SX returned to Canberra.
Further, in the collection of material produced by the Commissioner was a “Social Housing Register Needs Assessment Form” which, although undated, appears to be from December 2010. The form appears to be completed by an officer of the Commissioner and signed by LE. It records:
Currently homeless-staying @ Watson Caravan Park. Has been for the past few days + only has enough money to stay another few nights.
Partner returned from overseas (working at Christmas Island). Works for the federal police. DV incident upon his returned. Did not report to anyone. DVCS referred [LE] to First Point.
This represents a contemporaneous record of a “DV incident” having occurred upon SX’s return”. The reference to “DVCS referred ... to First Point” also assists in understanding a further document tendered by SX on the current application, namely, a “First Point Intake Form”. It appears to record intake information given to by a referral service on 6 December 2010, to which LE was referred by the Domestic Violence Crisis Service. That form records that LE had an intention of applying for housing assistance on 7 December 2014: “will apply for Housing ACT in the morning (7/12/10)”
In the light of this material, the contemporaneous documentary records appear to be consistent with the following chronology:
(a)LE first contacted a domestic violence crisis service and was referred to “First Point”;
(b)She completed an application for housing assistance on 5 December 2010
(c)She spoke to “First Point” on 6 December 2010 and indicated that she would apply to the Commissioner for Social Housing the next day;
(d)She lodged her application with the Commissioner on 7 December 2010.
Exhibit B in the Magistrates Court was a document signed on 4 March 2011, in which an officer of the Commissioner assessed LE’s application. It is this document which identified the date of LE’s application as 2 December 2010. In the light of the imperfect “received” stamp and the documentary material described above it appears to be erroneous, being the produce of a misinterpretation of the date recorded on the stamp.
Had the documentary material now available been tendered in the Magistrates Court it would, at the very least, have assisted in reducing the impact upon LE’s credibility arising out of the proof that the December 2010 incident could not have occurred on the day that she specified because at that point SX was still in transit.
There is no good explanation as to why it was not tendered at the hearing, although LE was critical of the manner in which her solicitor conducted her case.
LE also indicated that if leave to appeal was granted she would rely upon the affidavit evidence of KT, which was of a complaint made at about the time of the December 2010 incident and the signs of injury. There is no explanation as to why this evidence was not called at the hearing. In my view, the affidavit evidence of KT would be unlikely to be admitted into evidence because there is no explanation for the failure to call the deponent at the hearing in the Magistrates Court and the admission of that evidence would be likely to lead to a requirement that the deponent be cross-examined on it. The affidavit of AF also contains some reference to events in December 2010 but due to the indirect nature of the evidence and the absence of an explanation as to why it was not called at the hearing it would, in my view, be unlikely to be admitted.
Further, it appears that her Honour approached the matter on the basis that the date of the alleged assault in December 2010 was, if not on 1 December 2010, in the days before that. That appears from her Honour’s remark during the course of evidence which is quoted at [29] above. That does not appear to be a fair characterisation of the evidence. It is, in my view, reasonably apparent from LE’s evidence that she did not confine the date of the assault to the period prior to 1 December 2010.
Therefore, it appears that her Honour:
(a)proceeded in the absence of significant documentary evidence which was available but not tendered by either party at the hearing and was inconsistent with the only document from the Commissioner for Social Housing’s records that SX chose to tender; and
(b)proceeded on a misunderstanding that if the assault had not occurred on 1 December 2010 then LE’s evidence was that it occurred in the days prior to that.
Had the additional documentary evidence been admitted, the position in relation to the December 2010 incident would have been different. LE’s evidence was corroborated by her mother, KE, who the magistrate accepted was an honest witness. It is important to note that so far as her Honour’s assessment was concerned, she was troubled by the corroborative evidence of LE’s mother, both in relation to the December 2010 and bruised arm incidents. However LE’s allegations in relation to the March following incidents and the Eaglehawk following incident had been found to be without foundation, most particularly the following incident on 4 March 2014. Those matters would tend against the acceptance of LE’s evidence about what occurred in December 2010. However, if LE’s evidence of what occurred in December 2010 was accepted then that would be a significant matter in assessing likelihood of the bruised arm incident occurred. It may also have affected the characterisation of the ballet school incident.
Therefore, in relation to ground 2, 6 and 9 and the contention that in the light of the documentary material a different assessment of the credibility of the applicant should have been made I am satisfied that there is an arguable ground of appeal. While the prospects of having additional affidavit evidence admitted would appear poor and there was no good explanation for the failure to tender documentary material at the hearing, I am satisfied, principally having regard to the contents of the documentary material and the significance of the timing issue in relation to the December 2010 issue that there would be reasonable prospects for its admission and reasonable prospects for a ground of appeal in relation to the magistrate’s findings as to the December 2010 incident and LE’s credibility more generally.
Prospects of obtaining a different result
However, an arguable ground of appeal in relation to whether or not the threshold for making an order, namely, the occurrence of domestic violence, existed does not conclude the issue of the overall merits of an appeal.
If either the finding was reversed on appeal or, alternatively, the decision set aside and the matter remitted to the Magistrates Court for further hearing, in order to be successful LE would need to persuade the Court that as a matter of discretion, an order should be granted. Clearly a favourable finding in relation to the 2010 incident would provide a proper and powerful basis for the making of an order because of the seriousness of the allegation. It would also make a finding that the bruised arm incident occurred more likely and put that incident into the context of a course of conduct rather than an isolated one.
However, even if the December 2010 or bruised arm incidents were established, they would be incidents which were three and half and two and half years old respectively by the time of the consideration of the making of an order. It was because of the age of the incident that that her Honour said that even if the bruised arm incident was made out she would not have considered it appropriate to make an order. While the parties have clearly had a drawn out and acrimonious separation and are still required to interact with each other by reason of joint obligations in relation to their child and pending proceedings relating to property, the length of time since any act constituting domestic violence would very clearly be a strong factor tending against the making of any order. That is particularly the case where there is no evidence that the absence of an order since May 2014 has led to any domestic violence. It would mean that this Court, considering an appeal, or the Magistrates Court if the proceedings were remitted to it for further hearing, would be considering the significance of events not less than four and half years and three and a half years old respectively in circumstances where there was no evidence of further domestic violence since that time and where, although there was some need for further interaction between the two parties, that was regulated by Federal Circuit Court orders. As a consequence, in my view the prospects of ultimately obtaining a DVO on appeal or remittal to the Magistrates Court would be poor.
Availability of protection under the Act
Related to the limited prospects of an appeal having regard to the passage of time is the fact that remedies under the Act would still be available to LE in the event that an incident of domestic violence occurred in the future. This is relevant both because it might influence whether any DVO was ultimately made as a result of an appeal and also because it is directly relevant as to whether or not it is appropriate to grant an extension of time in which to appeal. If there was an incident that amounted to domestic violence then there is nothing that would prevent the making of a fresh application for an order based on that incident. The only consequence of the existence of the previous decision may be that an issue estoppel would prevent LE from relying upon the December 2010 or bruised arm incidents as background to the fresh incident relied upon to justify the application for an order.
I consider the capacity of LE to bring a further application if that is necessary as a consequence of an incident of domestic violence to be a very significant factor in determining where the interests of justice lie. That is because, even if an extension of time in which to bring the appeal is refused, that will not preclude the capacity of LE to seek protection under the Act if that becomes necessary in the future.
Prejudice to respondent
In Gallo v Dawson (1990) 93 ALR 479 McHugh J adopted the expression in Vilenius v Heinegar (1962) 36 ALJR 200 at 201 that, upon the expiry of the time for appealing the respondent had “a vested right to retain the judgment”. SX clearly has an interest in not being subject, after such a substantial period, to the reopening on an appeal of the issues decided by the Magistrates Court. That is particularly so in circumstances where these proceedings occur in the context of what appears to be a very unpleasant separation involving Federal Circuit Court proceedings and other complaints made against SX to his employer. SX was entitled, after the expiry of the appeal period, to expect that the proceedings were at an end. In such circumstances the need for finality of litigation is significant in assessing where the interests of justice.
Other relevant matters
LE expressly stated that one of her goals in seeking leave to appeal was because in proceedings of the Federal Circuit Court a judge of the Court had relied upon the decision of the magistrate in this case in order to make findings adverse to LE. In my view, having regard to the timing of this application and the nature of the Federal Circuit Court proceedings, it is the manner in which the decision of the Federal Circuit Court made use of the findings of the Magistrates Court which is the most significant issue for the applicant.
The decision of the Federal Circuit Court related to parental responsibility and living arrangements for LE and SX’s child. The decision was adverse to LE. The reasons given by the judge are in very strong terms and are highly critical of LE. In reaching his Honour’s conclusions, the judge had regard not only to matters related to the conduct of the Magistrates Court proceedings, such as the evidence which LE had given on the application for an interim DVO, but also to the findings of the Magistrates Court. His Honour expressly considered the legislative basis for such an approach at [45]-[61] of his reasons. Because of the operation of s 69ZX(3) of the Family Law Act 1975 (Cth), his Honour concluded that he was entitled to “adopt any recommendation, finding, decision or judgment of any court…” It is also apparent that although his Honour considered at greater length the evidence that was given before him that went to the credibility of LE, in making his findings he also relied independently upon the findings made in the Magistrates Court. That is made clear by his Honour’s finding in relation to the operation of s 69ZT and the following paragraphs of his Honour’s reasons: [2], [65](d), [128], [132], [133], [147], [152], [250], [274].
(At least in one respect his Honour’s use of the magistrate’s reasons appears to go beyond what was found in the Magistrates Court. In relation to the December 2010 incident, his Honour found “[t]he Magistrate found some of [LE’s] evidence to be dishonest, and did so on the higher criminal standard of beyond reasonable doubt.” That amounts to a finding of perjury to the criminal standard. However, what the magistrate said was, “I am satisfied beyond reasonable doubt that the defendant was on Christmas Island [on 1 December 2010]”. There was a finding of lack of honesty but not to the criminal standard.)
At [133] of his reasons the judge records, “[t]here was no formal challenge to the conclusion and resolution of matters in the Magistrates Court.” It is not clear to me precisely what this means. It is not clear the extent to which LE was on notice of a requirement to formally challenge, in the Federal Circuit Court proceedings, the findings or conclusions in the Magistrates Court, or whether possibly the statement relates to the absence of any appeal from the decision of the Magistrates Court.
A number of the findings of the Federal Circuit Court judge which relied upon findings of the Magistrates Court were specifically relevant to whether any assault occurred in December 2010: see his reasons at [2], [65](d), [128], [132], [133], [250], [274]. Further, it is very clear that the findings of the Magistrates Court influenced his Honour’s general conclusions about the reliability and honesty of LE. As a consequence, there is a connection between the findings made by the Magistrates Court and the findings made in the Federal Circuit Court.
As I understand it, LE has appealed from the decision of the Federal Circuit Court and hence puts, in support of her application for leave to appeal, the influence that any finding of the Magistrates Court may have on her position in the family law proceedings. However, given that the terms of s 67ZX(3) as set out in the Federal Circuit Court judgment it is clear that whether or not to adopt findings made by another court is discretionary. The manner in which his Honour appears to have used the findings or decision of the Magistrates Court is, as an evidentiary matter, one which could be adopted but not a matter which must be adopted if there was other evidence that indicated a different finding or decision should be made. His Honour has therefore used the findings of the Magistrates Court in order to reach the conclusions that he has reached rather than considering himself bound to reach the same conclusions by reason of operation of s 69ZX or indeed any question of issue estoppel (see Cross on Evidence, Australian Edition (Looseleaf) at [5125]). In my view, the refusal of an application for leave to appeal and hence the fact that the findings of the Magistrates Court remain undisturbed will not in those circumstances preclude LE from challenging the conclusions reached in the Federal Circuit Court. If it were otherwise then the most unsatisfactory situation might arise where the use, in another court, of findings of the Magistrates Court might compel the multiplication of appeal proceedings where they would otherwise not be necessary or appropriate.
Therefore, in my view, while I accept the submissions made by LE that the decision of the Federal Circuit Court relied in a significant manner upon the findings and decision of the Magistrates Court, if there are errors in adopting that approach or in the adopted findings or decisions of the Magistrates Court then that is a matter that can and should be resolved within the appellate hierarchy of the Federal Circuit Court rather than compelling an appeal to this Court.
Conclusion
In reaching my conclusion as to whether or not the granting of an extension of time in which to bring an appeal is “appropriate”, I have had regard to the objects of the legislation and to the fact that domestic violence orders are extremely important tools for protecting, in large part, women from domestic violence in the broadly defined statutory sense. I have also had regard to the distinction which the legislature has drawn between domestic violence and personal violence in the manner in which it has structured the threshold requirement for the making of either domestic violence orders or personal protection orders: see BL v SL and NM [2011] ACTSC 53 at [42], quoted in N v N (No 2) [2015] ACTSC 48 at [18]. That distinction emphasises the particular significance of past domestic violence for the making of orders under s 46 of the Act.
Balancing the factors discussed above I consider that it is not appropriate to extend the time in which an appeal can be brought. I accept that at least in relation to the December 2010 incident there is a reasonably arguable ground of appeal based on the documentary material to which I have referred. I also accept that the findings in relation to the December 2010 incident may have been significant in influence other findings made by the Magistrates Court. However, the factors that I consider to most significantly tell against a grant of an extension of time are:
(a)the length of time since the decision;
(b)the limited prospects of ultimately obtaining an order even if domestic violence was ultimately established;
(c)the interests of SX in not having a long finalised decision reopened; and
(d)the availability of protection under the Act if circumstances warrant it.
The fact that and manner in which the Federal Circuit Court has relied on the findings and decision reached in the Magistrates Court is a matter which is no doubt of significant concern to the applicant but as I have indicated the correctness of the Federal Circuit Court’s approach and conclusions are matters which will need to be resolved, if appropriate, in the appellate hierarchy of that Court.
As a consequence, the application will be dismissed. I will make no order as to costs but give the parties leave to be further heard in relation to costs if necessary.
Orders
The orders of the Court are:
1. The application lodged 2 January 2015 is dismissed.
2. There is no order as to costs.
3. Order 2 does not take effect for a period of 14 days or, if either party notifies my associate by email that the party wishes to be heard further on costs, does not take effect until further order of the Court.
| I certify that the preceding one-hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 11 May 2015 |
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