Matsebula v Reynolds - [2016] ACTSC 55

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Matsebula v Reynolds
Citation:	[2016] ACTSC 55
Hearing Date:	1 April 2016
DecisionDate:	4 April 2016
Before:	Murrell CJ
Decision:	Leave granted to amend the Notice of Appeal. Appeal stayed pending lodgement of security for costs. Otherwise, applications dismissed. Appellant to pay the respondent’s costs of the applications.
Catchwords:	PRACTICE AND PROCEDURE – Applications – application for leave to amend Notice of Appeal and adduce fresh evidence – leave granted to amend Notice of Appeal and refused to adduce fresh evidence PRACTICE AND PROCEDURE – Applications – application to strike out principal ground of appeal as incompetent – security for costs application – powers to order strike out and security for costs – merits of appeal – appellant impecunious – justice of the case – where making order has effect of halting appeal – security for costs order made
Legislation Cited:	Domestic Violence and Protection Orders Act 2008 (ACT) ss 7, 13 Court Procedure Rules 2006 (ACT) rr 1900, 1901, 1902, 1903, 5055, 5172
Cases Cited:	Benjamin v GB Franchising Australia Pty Ltd (2008) ACTLR 287 Hughes v Janrule Pty Ltd (2011) 177 ACTR 1 Robson v Robson [2008] QCA 36
Parties:	Jabulane Matsebula (Appellant) Julia Reynolds (Respondent)
Representation:	Counsel Self-represented (Appellant) Mr G Stagg (Respondent)
Solicitors Self-represented (Appellant) Farrar Gesini and Dunn (Respondent)
File Number(s):	SCA 3 of 2016

Decision under appeal:

Court/Tribunal: ACT Magistrates Court

Before: Special Magistrate Cush

Date of Decision: 15 December 2015

Case Title: Matsebula v Reynolds

Court File Number(s): DV 15/791

MURRELL CJ:

The applications

The Magistrates Court refused an application by Mr Matsebula for a domestic violence order against his former de facto partner, Ms Reynolds. He appealed. In relation to the appeal, Ms Reynolds seeks to strike out the principal ground of appeal and asks for security for costs. Mr Matsebula also has an application before the Court.

The couple lived together for many years. They have two children. In May 2015, they separated. The children remained with Ms Reynolds. On 15 May 2015, Ms Reynolds obtained an interim domestic violence order against Mr Matsebula. She withdrew the application for a final order when, on 7 July 2015, Mr Matsebula gave undertakings without admission.

In September 2015, Mr Matsebula sought domestic violence orders against Ms Reynolds. This application was resolved when Ms Reynolds undertook that she would not harass Mr Matsebula, that she would not dispose of his personal property situated at the former matrimonial home (which was occupied by Ms Reynolds), and that she would deliver certain items to Mr Matsebula: see Exhibit 1.

On 30 October 2015, Mr Matsebula sought a domestic violence order against Ms Reynolds. He claimed that, in breach of her undertaking, Ms Reynolds had harassed him by sending text messages between 18 and 21 October 2015. He said that the content and frequency of the text messages constituted harassment. The text messages (and Mr Matsebula’s responses to the messages) are Attachment B to the Notice of…

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.

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Details

AGLC: Matsebula v Reynolds [2016] ACTSC 55
Case: [2016] ACTSC 55
Decision Date: 4 April 2016

CaseChat Overview and Summary

The case of Matsebula v Reynolds involved an application by the appellant, Matsebula, to amend the Notice of Appeal and to adduce fresh evidence, as well as an application to strike out the principal ground of appeal. The application also included a request for security for costs. The matter was heard in the relevant appellate court where the appellant sought to alter the Notice of Appeal and introduce new evidence, while also requesting the court to dismiss the principal ground of appeal on the basis that it was incompetent. Additionally, the appellant applied for security for costs, arguing that such an order was necessary due to the respondent’s financial status and to ensure that the appeal could proceed fairly.

The legal issues before the court were whether leave should be granted to amend the Notice of Appeal, whether fresh evidence could be adduced, whether the principal ground of appeal should be struck out, and whether an order for security for costs was warranted. The court had to balance the appellant’s right to amend and present a fair appeal against the respondent’s right to protect their interests and ensure the appeal did not proceed unduly. The court considered the appellant's financial situation and the potential impact of any orders on the proceedings' fairness and progress.

The court granted leave to amend the Notice of Appeal but denied the request to adduce fresh evidence, as the new evidence did not materially affect the appeal's outcome. The court also refused to strike out the principal ground of appeal, finding it competent. However, the court granted the security for costs application, recognising the appellant’s impecuniosity and the need to ensure the respondent was protected against potential costs if the appeal were to be unsuccessful. Consequently, the appeal was stayed until the appellant provided the necessary security for costs. The appellant was ordered to pay the respondent's costs for the applications.

In conclusion, the court’s decision allowed for the amendment of the Notice of Appeal, ensuring the appellant could adequately present their case. However, the court's refusal to accept fresh evidence and strike out the principal ground of appeal indicated a cautious approach to procedural flexibility that preserves the integrity of the appeal process. The imposition of security for costs reflects a consideration of both parties' rights and the need to manage the financial implications of litigation.

Orders

Orders of the court

Leave granted to amend the Notice of Appeal. Appeal stayed pending lodgement of security for costs. Otherwise, applications dismissed. Appellant to pay the respondent’s costs of the applications.

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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