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LE v SX (No 3)

LE v SX (No 3)

Case [2016] ACTSC 243 26 August 2016

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	LE v SX (No 3)
Citation:	[2016] ACTSC 243
Hearing Date:	Determined on the papers
DecisionDate:	26 August 2016
Before:	Mossop AsJ
Decision:	The application in proceeding dated 29 April 2016 is dismissed with costs.
Catchwords:	PRACTICE AND PROCEDURE – Application to set aside previously made orders – Where orders not yet entered – Orders related to decision to refuse extension of time in which to bring an appeal from Magistrates Court – Whether applicant denied natural justice due to hearing deficit – Whether leave should have been given to applicant to make written submissions – Procedurally fair hearing does not require party to be given an opportunity to make written submissions – Whether applicant prevented from completing oral submissions – No denial of procedural fairness – Application dismissed
Legislation Cited:	Court Procedures Rules 2006 (ACT) Domestic Violence and Protection Orders Act 2008 (ACT)
Cases Cited:	LE v SX [2015] ACTSC 79 LE v SX [No 2] [2016] ACTSC 107 N v N (No 2) [2015] ACTSC 48
Parties:	LE (Applicant) SX (Respondent)
Representation:	Counsel Mr G Stretton SC (Applicant) Mr R Routh (Respondent)
Solicitors Self-represented (Applicant) Farrar Gesini Dunn (Respondent)
File Number:	SCA 1 of 2015
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 27 May 2014 Case Title: LE v SX Court File Number: DV 157 of 2014

MOSSOP AsJ:

Introduction

This is an application to set aside orders that I made on 5 June 2015. Those orders have not yet been entered. The application in proceedings seeking to have the orders set aside is dated 29 April 2016. In order to understand the application it is necessary to set out some of the unusual procedural history of the matter.

The proceedings in this Court involved an application for an extension of time in which to bring an appeal from the Magistrates Court. The application was heard over three days in March 2015 and I published my decision on 11 May 2015: LE v SX [2015] ACTSC 79. The orders that I made were that the application be dismissed and that there be no order as to costs, but I permitted a party seeking a different costs order to do so. The respondent to the application did seek an alternative order and the proceedings were listed for the determination of the question of costs on 5 June 2015. I will return later in these reasons to what occurred on that day. The order that I made was that instead of there being no order as to costs, the applicant was ordered to pay the respondent’s costs of the application.

Consistently with that order the respondent filed a bill of costs on 23 October 2015. A costs assessment took place and a certificate of costs assessment was filed on the 16February 2016 certifying that the Deputy Registrar had allowed costs of $42,073.34. On 22 February 2016 the applicant filed an application in proceeding…

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 (No 3)

Details

AGLC: LE v SX (No 3) [2016] ACTSC 243
Case: [2016] ACTSC 243
Decision Date: 26 August 2016

CaseChat Overview and Summary

In the case of LE v SX (No 3), the parties involved were LE, the applicant, and SX, the respondent. The dispute centred around an application by LE to set aside previously made orders. These orders pertained to a decision made by the court to refuse an extension of time for LE to bring an appeal from the Magistrates Court. The case was heard in the Supreme Court of the relevant jurisdiction. LE argued that the procedural fairness of the hearing was compromised due to a deficit in the hearing process and that they should have been granted leave to make written submissions. The respondent, SX, contested these claims, asserting that the hearing was conducted fairly.

The legal issues that the court was required to decide were whether LE was denied natural justice due to a deficit in the hearing, whether LE should have been granted leave to make written submissions, and whether LE was prevented from completing oral submissions. The court had to examine the procedural fairness of the hearing and determine if any of LE's rights were infringed upon in a manner that could be considered unjust.

The court found that a procedurally fair hearing does not necessarily require a party to be given an opportunity to make written submissions. The court considered the circumstances of the hearing and concluded that there was no denial of procedural fairness. Furthermore, the court found that LE was not prevented from completing oral submissions. Consequently, the application to set aside the previously made orders was dismissed, and costs were awarded to the respondent, SX. The court's reasoning was based on the understanding that procedural fairness is not strictly defined by the inclusion of written submissions but rather by the overall fairness of the hearing process.

The final orders of the court were that the application in the proceeding dated 29 April 2016 was dismissed with costs. This decision upheld the previously made orders and concluded that no procedural unfairness had occurred during the hearing.

Orders

Orders of the court

The application in proceeding dated 29 April 2016 is dismissed with costs.

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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Citations

AGLC Citation

LE v SX (No 3) [2016] ACTSC 243

Most Recent Citation

LE v SX [2017] ACTCA 34

Cases citing this decision · 1 of 1 shown

LE v SX
[2017] ACTCA 34 Para 1

…Mossop AsJ gave his decision on 26 August 2016 ( LE v SX (No 3) [2016] ACTSC 243). His Honour dismissed the application to set aside the orders that he had previously made.…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

Le v SX
[2016] ACTSC 107 Para 1

…ision. In a written decision published on 30 May 2016, his Honour decided that it was appropriate that the matter be determined by me: LE v SX [No 2] [2016] ACTSC 107. His Honour recorded that it was not apparent to him why the matter had been listed before him rather than, as my directions contemplated, before me:…
LE v SX
[2015] ACTSC 79 Para 1

…ing an appeal from the Magistrates Court. The application was heard over three days in March 2015 and I published my decision on 11 May 2015: LE v SX [2015] ACTSC 79. The orders that I made were that the application be dismissed and that there be no order as to costs, but I permitted a party seeking a different co…
N v N (No 2)
[2015] ACTSC 48 Para 1

…in determining whether or not to vacate orders that had been made by the Court but not entered. That was an issue which I considered in N v N (No 2) [2015] ACTSC 48. At [10]-[14] I outlined the principles to be applied to an application to vacate orders prior to their entry under the Court Procedures Rules 2006 (…
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2)
[2013] HCA 44 Para 13

…se. The nature of the division between the majority and minority judges was described in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) (2013) 87 ALJR 1159 at [13]–[15] as follows: 13.All members of the Court in Autodesk (No 2) ] accepted that this Court may recall orders which it has made disposing of a…
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd
[2013] HCA 11

…[10]In Autodesk v Dyason (No 2) (1993) 176 CLR 300, the High Court divided on whether or not to permit an unsuccessful respondent to vacate the judgment on the ground that, without fault on its part, it had no opportunity to be heard on the issues that were decided in the judgment. The particular is…
Nominal Defendant v Livaja
[2011] NSWCA 121 Para 23

…which the decision is given and hence how any reopening will affect the public interest in the finality of litigation. In Nominal Defendant v Livaja [2011] NSWCA 121 at [23] Basten JA, delivering the judgment of the court, said: 23.Further, it is helpful to distinguish between a case such as Autodesk , where the H…
Brooker v Friend (No 2)
[2008] NSWCA 129

…distinguish between a case such as Autodesk , where the High Court believed it had delivered a final judgment, a case such as Brooker v Friend (No 2) [2008] NSWCA 129, where this Court delivered its reasons, with proposed final orders, but sought submissions in respect of the appropriate form of the orders, and a c…
Elliott v The Queen
[2007] HCA 51 Para 31

…to have been adopted in relation to the criteria governing the exercise by a superior court of its power to reopen its own decisions. In Elliott v R (2007) 234 CLR 38 at [31]–[32] the reasons of the court provide: 31.It is well settled that a superior court of record such as the Supreme Court has a power to “reopen…
Oshlack v Richmond River Council
[1998] HCA 11

…relation to costs, most clearly exemplified in Latoudis v Casey (1990) 170 CLR 534. While authorities such as Oshlack v Richmond River Shire Council (1998) 193 CLR 72 recognise that the costs discretion is broad enough so as to [confer] in appropriate circumstances a discretionary decision not to award costs agains…
Autodesk Inc v Dyason (No 2)
[1993] HCA 6

…[10]In Autodesk v Dyason (No 2) (1993) 176 CLR 300, the High Court divided on whether or not to permit an unsuccessful respondent to vacate the judgment on the ground that, without fault on its part, it had no opportunity to be heard on the issues that were decided in the judgment. The particular issues in that case…
Latoudis v Casey
[1990] HCA 59

…s a strong compensatory theme that runs through the principles that are applicable in relation to costs, most clearly exemplified in Latoudis v Casey (1990) 170 CLR 534. While authorities such as Oshlack v Richmond River Shire Council (1998) 193 CLR 72 recognise that the costs discretion is broad enough so as to [con…
Pantorno v The Queen
[1989] HCA 18

…to be heard. A court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue (Pantorno v R(1989) 166 CLR 466). However, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the cou…
Metwally v University of Wollongong
[1985] HCA 28

…rt as an unconceded step in determining the validity of a conclusion for which one of the parties contends (University of Wollongong v Metwally (No.2)(1985) 59 ALJR 481, at p 483; 60 ALR68, at p 71). Of course, the precise ground which a court or judge assigns for a decision will frequently be formulated in terms dif…

Legislation cited in this decision · 3

Copyright Act 1968 (Cth)
1 mention
Court Procedures Rules 2006 (ACT)
1 mention (from Para 1)
Domestic Violence and Protection Orders Act 2008 (ACT)
1 mention (from Para 1)