N v N (No 2)
[2015] ACTSC 48
•25 February 2015
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 |
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
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.
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
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).
The transcript of the argument on the appeal which occurred on 6 November 2014 was not put into evidence or otherwise available to the Court.
In the decision given on 7 November 2014 I concluded that the court below had exercised its discretion on the basis either of an erroneous finding of fact that there would be no loss of income arising from the matters given by the appellant in evidence or, if the Court did not make such a finding, then the Court erred in not having made a finding that there would be such a loss. The transcript of the reasons then continues:
In those circumstances, in my view, that is sufficient to demonstrate error, for the purposes of House v The King [(1936) 55 CLR 499]. As a consequence it is necessary for me to re‑exercise the discretion. Having regard to the fact that I am re‑exercising the discretion at a time many months after the original order was made the factors relevant to the exercise of the discretion are influenced by the fact that there has, in fact, been an order in place since 18 June 2014 and that there is no evidence of any non‑compliance with that order and hence no evidence of any “domestic violence” in the statutory sense since 16 March 2014.
The position is that there was an assault on the respondent. That assault was a minor assault which occurred in circumstances which make it understandable, if not legally justifiable. There is clearly a significant degree of hostility on the part of the respondent towards the appellant. Any contact between the respondent and appellant would be unwelcome to the respondent and would potentially fall within the scope of conduct which is “harassing or offensive” to the respondent. See s 13(1)(e) [of the Act].
There is no up to date evidence as to the state of compliance with the orders relating to the property settlement made by the Federal Circuit Court, although the likelihood is that those matters are substantially complete. There is no identifiable circumstance which would indicate a likelihood of the appellant making or coming into contact with the respondent. The terms of ss 6 and 7 of the Act, in particular s 7(1)(a), compel very great weight be given to “ensuring” the aggrieved person is protected from domestic violence. That is said to be “the paramount consideration”.
The principle in s 7(2) that orders made under the Act must be “the least restrictive of the personal rights and liberties of the respondent” is expressly qualified by the need to still give effect to s 7(1). Notwithstanding these strongly worded directives, s 47 contemplates that there is a balancing exercise to be undertaken. The balancing exercise is one that is heavily weighted towards the protection of the relevant person. In situations where there has been a single event prompting the application, which is in ordinary circumstances unlikely to be repeated, there must inevitably be an assessment as part of the balancing exercise of the extent of the risk of further domestic violence in the broadly defined statutory sense occurring in the future.
Having said that it is important to note that s 46 of the Act indicates that it is not necessary for the court to be satisfied in cases of “domestic violence”, as opposed to “personal violence”, that the person to be constrained “may engage” in domestic violence during the time the order is proposed to operate, if the order is not made (cf s 46(1)(a) with s 46(1)(b).) This indicates a lower threshold for the making of orders in the case of applications for orders, based on “domestic violence”.
Because in a case like this what is involved is a decision dealing with relatively minor future risks, there is a significant degree of discretion as to what is necessary to give effect to the principles for the making of protection orders in s 7 to which I have referred. There will inevitably be a significant degree of speculation and impression in the process of assessing what is necessary to “ensure” protection from domestic violence.
In the present case I am satisfied that, even having regard to the terms of ss 6 and 7 of the Act, the continuation of the present order is not necessary. It appears to me that any risk of “domestic violence”, as defined in s 13 is at a level which is so low that it is no longer necessary to ensure that the respondent is protected from domestic violence. In reaching that conclusion I have taken into account in particular the potential for there to be significant ongoing financial consequences for the appellant by reason of the maintenance of the order. I note, however, that no evidence is available that indicates that the appellant’s security clearance has, in fact, been lost or downgraded.
I am not satisfied that I should interfere with his Honour’s order so far as it relates to the past. That is because even though his Honour erred in either rejecting the appellant’s evidence or failing to make adequate findings of fact about the existence or risk of financial harm that would arise from the continuation of the order, it was nevertheless reasonably open to conclude that an order should be made.
Those circumstances were:
a)the provisions of the Act which were very heavily weighted towards the elimination of risk;
b)the undoubted hostility and sensitivity of the respondent to any contact with the appellant;
c)the fact that the events of 16 March 2014 involved a breach of the undertakings given by the appellant:
d)the relatively short period since there was an active confrontation between the two; and
e)the potential for further tension arising out of the working out of the property settlement between the appellant and the respondent’s mother.
I do not see that any useful purpose would be served by setting aside the order ab initio. It is not a case where one of the jurisdictional requirements for the making of the order, such as the existence of “domestic violence” was missing. Further, the evidence did not extend as far as indicating that the mere existence in the past of a domestic violence order which has now expired would cause additional harm to the appellant. In the event of the appeal being allowed the appellant did not seek costs. In my view it is appropriate to make no order as to costs.
The orders of the Court are:
1.The final order made on 17 June 2014 is amended by deleting “31 December 2014” and inserting “4.15 pm on 7 November 2014”.
2.There is no order as to costs of the appeal.
The appellant puts forward three bases upon which he submits that the power to recall the judgment can be exercised.
The first is that the decision of the ACT Supreme Court in BL was not available to the Court at the time of the hearing. The parties were agreed that the decision was not available on the Supreme Court’s website or upon searches of the usual publishers of the Court’s decisions and that it only came to the attention of counsel for the appellant after the hearing. The appellant submitted that Refshauge J’s consideration of whether a domestic violence order should be made in circumstances where the particular incident was a “one-off” should be applied. Counsel for the appellant submitted that the reasons in BL were inconsistent with the approach adopted in the decision in this case and that as a matter of precedent, or alternatively comity, the decision in BL should have been followed.
The second submission was that the appellant was not heard on the issue of whether the order should simply be ended at the time of the judgment on the appeal. The appellant submitted that this possibility was not raised by the Court with the parties at the time the appeal was argued. The appellant would wish to submit that the position at the time of the appeal hearing was no different to that at the time of the substantive hearing. in other words, that there was no likelihood of further incidents in June 2014 nor was there in November 2014.
Finally, the appellant submitted that the Court failed to address one of the orders sought by the appellant, namely, an order revoking the domestic violence order pursuant to s 92 of the Act which counsel submitted was picked up by the power in s 100 of the Act to “make the decision or order that, in all the circumstances, [the Court] considers appropriate”.
Principles to be applied
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 were matters of some intricacy relating to the operation of the Copyright Act 1968 (Cth) in relation to a computer program. The Court divided not only on the circumstances in which leave might be given to reopen a judgment which had not yet been entered, but also on the application of those principles in the particular circumstances of the case. The nature of the division between the majority and minority judges was described in Castle Constructions Pty Limited 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 an appeal if those orders were made against a party who, without fault on the part of that person, has not had an opportunity to be heard as to why those orders should not be made. More particularly, it was accepted that this Court may recall its orders if they were made on a ground which the person against whom the orders were made had no opportunity to argue.
...
15.This Court divided in opinion in Autodesk [No 2] about whether the jurisdiction to recall this Court's orders extended beyond cases where a party was not given an opportunity to be heard on an issue held to be determinative. Mason CJ took the broadest view of the power to reopen and, with Deane J, dissented as to the outcome in the particular case. Mason CJ said that the exercise of the jurisdiction to reopen should not be confined "in a way that would inhibit [the Court's] capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment". Nonetheless, Mason CJ emphasised that the jurisdiction to reopen "is not to be exercised for the purpose of re-agitating arguments already considered by the Court". Rather, Mason CJ concluded that "[w]hat must emerge ... is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing". (footnotes omitted)
The broader view of Mason CJ appears 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 The Queen (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" a proceeding until judgment in the case in question has been drawn up, passed and entered. But by what criteria is that authority to be exercised?
32.It is here that guidance is provided by remarks of Mason CJ in Autodesk Inc v Dyason (No 2). His Honour gave examples from jurisdictions in this country (including the New South Wales Court of Appeal) and the United Kingdom where the power to reopen had been exercised on grounds not limited to denial of a fair hearing, but went on:
"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."
The circumstance in Autodesk that Mason CJ dissented as to the outcome of the reopening application which was before this Court does not detract from his remarks. (footnotes omitted)
The remarks in Elliott are equally applicable to reopening the final decision of this Court prior to the entry of orders.
The willingness of a court to reopen its decision will be influenced by the circumstances in 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 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 case such as the present, where a trial judge, without the benefit of transcript, is delivering an oral judgment from handwritten notes. It is also desirable to distinguish between cases where, perhaps because of the delivery of formal written reasons, the application to vary the judgment is delayed, as compared with the present case, where it was made immediately the calculation had been expressed. The reason why such distinctions are important is that the public interest in the finality of litigation carries far less weight in some circumstances than in others. Where an apparent error can readily be addressed without the need to resort to expensive and time-consuming appeal proceedings, that course should be permitted and encouraged.
In Autodesk, Brennan J, one of the majority judges, made (at 308) further observations as to what was involved in the concept of an opportunity to be heard.
It is desirable to add in the context of the present case a further observation about the opportunity 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 The Queen (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 course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends ( University ofWollongong 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 different from the terms of a submission by counsel but, provided the ground has arisen in one of the ways mentioned, the court or judge may properly proceed to judgment without requiring the case to be relisted for further argument and without inviting supplementary submissions to be made.
Consideration
Does the unavailability of the decision in BL provide a basis for the reopening of the argument on the appeal?
Having regard to the test accepted by the High Court in Elliott I accept that the failure of either party to refer to a relevant binding authority may give rise to a misapprehension of the law which may warrant the reopening of argument.
The submission of the appellant in the present case was that the decision of Refshauge J in BL was a decision which should be followed as a matter of precedent or comity and that the decision of the Court in the present case was inconsistent with that decision. Both of the premises for this submission were incorrect because the decision of Refshauge J was not a decision binding upon me and was not inconsistent with the reasons that I gave on 7 November 2014. As a consequence, the discovery of BL sometime after the giving of judgment does not provide a basis for the reopening of argument on the appeal.
As to the first issue, BL is a decision of a single judge of this Court. It would only be binding upon the Master of the Court if it was a decision of a judge higher in the appellate structure than the Master. In relation to final decisions such as the decision on an appeal from the Magistrates Court, an appeal from the Master is to the Court of Appeal (Supreme Court Act 1933 (ACT) s 9(2)(b)). Therefore, the decision in BL was not binding upon me and any departure from it would not involve a misapprehension of the law of the kind which would enliven the power to reopen.
As to the second issue, the decision that I gave was not inconsistent with the decision in BL. In BL, Refshauge J said:
42.The sections I have referred to above show, in particular, that for domestic violence (s 40(1)(a)), there is no requirement that the magistrate be satisfied that the respondent may engage in domestic violence in the future, in contradistinction to the position in respect of personal violence. That is because of the recognition that in a domestic situation, where there are bonds between the parties, there is always a risk of future domestic violence, as a result of the power and personal relations involved, the domestic violence may be directed at a relevant person not the applicant and that includes the daughter or mother of the applicant.
43.It seems to me that this, taken in conjunction with ss 5 and 6 of the Protection Orders Act, means that where the court is satisfied that domestic violence has occurred, it should ordinarily make an order unless satisfied that there is no probable likelihood of such circumstances, like the ongoing relationship that the appellant and respondent have, that would put the applicant at risk. This may put a burden of proof on the respondent but, of course, it could only be and, in my view, is an evidential burden to raise the issue such that the applicant must then show, on the balance of probabilities, that such circumstances are not proven or do not outweigh the need for protection.
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140.As to the first, the legal position is not quite as it is submitted. To take the approach submitted by the appellant's counsel would converge the clear legislative distinction between domestic violence orders and personal protection orders to oblivion. It is clear from the difference between the two, quite precisely set out in the legislation, together with the explanation in the Explanatory Memorandum and in the report, Domestic Violence, that there is no basis for saying that future conduct is central to the exercise of the discretion in relation to domestic violence orders.
141.It seems to me that the legislature accepts that the very nature of a domestic relationship means that there is likely to be some kind of ongoing interaction between the parties to it, even when the relationship has irretrievably broken down at least for a time. For example, there may be matters in relation to property, custody of children and the like that need resolution even when the relationship has come to an end. In addition, the very nature of the relationship means that there are often more volatile consequences of its breakdown.
142.Bearing in mind that the protection is not limited to physical contact but includes harassment and offensive behaviour, such behaviour can occur even when the parties are not living together or even in the same town.
143.That does not mean, however, that proof of the commission of a domestic violence offence automatically requires an order to be made, but there must be some clear evidence to counter the legislative implication that in such a special relationship there is, ordinarily, an unacceptable risk of domestic violence in the future where proved domestic violence has occurred. Of course, the extent and seriousness of the violence would be relevant; a one-off incident may be different to the ongoing abusive and angry interaction of which there was evidence here.
Clearly his Honour’s decision, particularly [43] which was relied upon by the appellant, recognises that where the issue is raised “the applicant must then show, on the balance of probabilities, that such circumstances are not proven or do not outweigh the need for protection.” In the present case it was the latter issue which was critical. That issue involved a balancing exercise which must be engaged in having regard to the risk of there being further conduct that should be prevented.
The passage from the reasons that I gave on 7 November 2014 quoted above clearly recognised the significance of the distinction between domestic violence orders and personal protection orders. The decision weighed the factors in favour of and against the maintenance of any order against the appellant. It gave particular consideration to the significance of the objects and principles of the Act in circumstances where there was a one-off event of domestic violence. There is, in my view, no difference in approach between the decision which I gave and the decision in BL. Even if there is some difference in approach (a difference which I cannot perceive), it is certainly not the kind of misapprehension of the law that would make it appropriate to reopen argument on the appeal. As a consequence, the discovery of that decision is not a proper basis for reopening argument on the appeal.
Was the decision made on a ground which the person against whom the orders were made had no opportunity to argue?
A significant difficulty for the appellant on this application is that he has not tendered the transcript of the appeal hearing on 6 November 2014. It is therefore not possible to identify the course of argument or the extent to which the issues now sought to be agitated were agitated during argument.
However, even in the absence of the transcript it is possible to say the following. The present case involved a rehearing. In so far as the decision appealed from involved the exercise of a discretion then the identification of an error in the exercise of that discretion in a House v The King sense would lead to a necessity for that discretion to be re-exercised.
The notice of appeal sought that the final order made on 17 June 2014 be revoked and that the application for a final order be dismissed.
The written submissions filed by the parties in advance of the appeal were relatively lightly textured, focusing on questions of fact relating to the particular errors asserted. They did not specifically address questions of jurisdiction, the nature of the appeal or the precise considerations that would arise in relation to the relief that should be granted if the discretion was to be re-exercised. In those written submissions the parties did not specifically address what orders should be made beyond that the respondent sought the dismissal of the appeal and the appellant identified that his Honour erred in various respects.
There are plainly many reasons why parties may not cover all the issues that arise on an appeal thoroughly in their written or oral submissions. Many of the reasons will involve forensic choices as to how to present or defend an appeal. There was nothing which has been identified by the appellant, either in the approach of the respondent or the manner in which the case was argued, that confined the issues that needed to be dealt with in submissions or that confined the outcome of the appeal to the preferred outcomes sought by either side.
It is clear that the opposing positions of the parties were that the appellant said that the appeal should be allowed and the application for a protection order dismissed and the respondent contended that the appeal should be dismissed leaving in place the existing domestic violence order. The appellant therefore knew that the steps in its argument which were not conceded were that there was an error demonstrated in the approach taken by the magistrate and that, if an error was established, then the order to be made should be different to the order that was made by the magistrate. The appellant had the opportunity to present its argument as to how, if a House v The King error was identified, the discretion should be re-exercised. Plainly it could be re-exercised in any way ranging from not disturbing the order made by the magistrate through to setting aside that order and dismissing the application for a protection order. It was clear that the appellant contended for the latter approach and that the respondent contended for the former approach. The fact that the Court adopted, in effect, an intermediate approach, does not demonstrate that the appellant was not given an opportunity to argue in favour of a dismissal of the application for the domestic violence order or against any order that maintained a domestic violence order in place. Finally, the fact that the outcome of the appeal ordered by the Court was, as counsel for the appellant submitted, “not expected” by the appellant does not provide a proper basis for reopening argument on the appeal.
Does the possibility of revocation of the order warrant reopening?
On this point the submissions of the appellant were misconceived. Once again, in the absence of the transcript of the argument on the appeal, it is not possible to say whether revocation of a final order under s 92(1)(c) was referred to in oral submissions. There was no reference to that provision in the written submissions.
Part 11 of the Act is a part entitled “Review of orders”. In addition to providing for appeals to the Supreme Court (ss 96-101) it also provides in ss 91-95 a process whereby final domestic violence or protection orders may be reviewed by the Magistrates Court itself upon an application by a party to the proceedings or, in some cases, other persons with sufficient interest. It thus modifies the rule that final orders of the Court are not subject to review other than by way of appeal.
However, the power to review final orders is a power that lies with the Magistrates Court: see s 92. The power is not given to the Supreme Court. The power of the Magistrates Court is only enlivened by the making of an application under, relevantly, s 91 of the Act.
Although making of an application to the Magistrates Court for the review of the domestic violence order was a course which might have been adopted by the appellant, it was not in fact adopted. Therefore, it was never open to the appellant in this appeal to obtain the revocation of the original order under s 92(1)(c). In so far as the appellant submitted that the power to revoke an order might be picked up by the power in s 100(b) to “make the decision or order that, in all the circumstances, it considers appropriate”, that power is one which would not have any different effect to reversing the decision appealed from in s 100(a) and as such was clearly an order contemplated as a possibility by the parties for the purposes of their submissions on the appeal. As a consequence, the appellant’s submission based on s 92 does not provide a basis to reopen the hearing on the appeal.
Conclusion and orders
None of the grounds put forward by the appellant warrant reopening the argument on the appeal. In the event that the application for leave to reopen was dismissed the respondent sought costs. In my view, it is appropriate that costs follow the event.
The order of the Court is therefore:
1. The application dated 5 December 2014 is dismissed with costs.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 4 March 2015 |
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