N v N (No 2)

[2015] ACTSC 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

N v N (No 2)

Citation:

[2015] ACTSC 48

Hearing Date:

24 February 2015

DecisionDate:

25 February 2015

Before:

Mossop M

Decision:

1.   The application dated 5 December 2014 is dismissed with costs.

Category:

Procedural and other rulings

Catchwords:

PROCEDURE – Application to reopen appeal proceedings – whether there was a misapprehension of the facts or the relevant law – effect of the unavailability of a previously published authority – whether decision made on a ground which the person against whom the orders were made had no opportunity to argue – whether the possibility of revocation of the order warrants reopening – application dismissed

Legislation Cited:

Domestic Violence and Protection Orders Act 2008 (ACT)

Supreme Court Act 1933 (ACT) s 9(2)(b)

Cases Cited:

Autodesk v Dyason (No 2) (1993) 176 CLR 300

BL v SL and NM [2011] ACTSC 53
Castle Constructions Pty Limited v Sahab Holdings Pty Ltd (No 2) (2013) 87 ALJR 1159
Elliott v The Queen (2007) 234 CLR 38
House v The King (1936) 55 CLR 499
Nominal Defendant v Livaja [2011] NSWCA 121

Parties:

N (Appellant)

N (Respondent)

Representation:

Counsel:

Mr J Lawton (Appellant)

Mr M Kukulies-Smith (Respondent)

Solicitors:

Watts McCray (Appellant)

Kamy Saeedi Law (Respondent)

File Number:

SCA 50 of 2014

Publication Restriction:

Yes (Identity of parties)

Application

1. This appeal from a decision of the Magistrates Court granting a domestic violence order under the Domestic Violence and Protection Orders Act 2008 (ACT) (the Act) was heard on 6 November 2014.  I gave my decision on the appeal on 7 November 2014.  The orders that I made were that the final order made by the Magistrates Court on 17 June 2014 was amended by deleting 31 December 2014 and inserting “4.15 pm on 7 November 2014”.  The effect of that was to shorten the length of the final domestic violence order in place protecting the respondent from the appellant.  The order made on the appeal has not been entered. 

1. By application in proceeding dated 5 December 2014 the appellant seeks orders that the judgment given on 7 November 2014 be recalled and that the decision under appeal be set aside and the application for a final order be dismissed or, alternatively, that the final order be revoked.  The relief sought is the same relief that was sought in the notice of appeal.  The substance of the issue before me arising out of the present application is whether or not I should permit the hearing of the appeal to be reopened so as to allow the appellant to present further arguments.

The basis for the application

1. The appellant, in support of the application for leave to reopen the argument on the appeal, read the affidavit of Ronald Friesen.  That affidavit annexed a transcript of the Court’s reasons on 7 November 2014 and a copy of the decision of Refshauge J in BL v SL and NM [2011] ACTSC 53 (BL).

1. The transcript…