Police v RA - [2010] NTMC 61

CITATION: Police v RA [2010] NTMC 061
PARTIES: POLICE

v
RA

TITLE OF COURT:   COURT OF SUMMARY JURISDICTION
JURISDICTION: Domestic and Family Violence Act
FILE NO(s):   21021126, 21020179 & 21020181
DELIVERED ON:   6 October 2010
DELIVERED AT:   Darwin
HEARING DATE(s):   24 September 2010
JUDGMENT OF:   Ms Sue Oliver SM
CATCHWORDS:

COSTS – Domestic and Family Violence Act- unreasonable applications
REPRESENTATION:
Counsel:
Applicant:   Ms Watson
Defendant:   Mr Murphy
Solicitors:
Applicant:   Northern Ter ritory Police
Defendant:   Ray Murphy, Barrister and Solicitor
Judgment category classification:           A
Judgment ID number:   [2010] NTMC 061
Number of paragraphs:   48

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21021126, 21020179, 21020181
[2010] NTMC 061

BETWEEN:
POLICE

Applicants
AND:
RA

Defendant

REASONS FOR DECISION
(Delivered 6 October 2010)
Ms Sue Oliver SM:
1.The defendant in these three matters seeks a costs order against the applicant in respect of each of the matters. Northern Territory police were the applicants for two of the orders, whilst the third is an order made by police under section 41.

The Section 28 Applications
2.On 16 June 2010 applications were made to the Court under section 28 of the Domestic and Family Violence Act by Northern Territory police for Domestic Violence Orders for CH and KH respectively as protected persons.
3.CH and KH are respectively the mother and sister of JH. JH had previously been in a de facto relationship with the defendant, RA. Both of these persons therefore are within the definition of family relationship in section 10 of the Act and in a “domestic relationship” with the defendant within the meaning of section 9(a) and are persons for whom a domestic violence order (“DVO”) may be made.

The Section 41 Application
4.On 18 June 2010 JH made a statement to police in Katherine (although Katherine, based on the contents of the affidavits and statements filed by both parties, is not her ordinary residence) in which she requested a restraining order in respect of herself and the four and half year old daughter. JH gives no reason in her accompanying statutory declaration to explain the circumstances by which she came to seek the assistance of police in Katherine rather than Darwin on that day.
5.A police Domestic Violence Order (“the police DVO”) was made at 15.00 hours on 18 June 2010 naming both JH and the child J as protected persons and imposing full non contact and violence restraints on the defendant with respect to each of them. He was served later that day in Darwin and summoned to appear on 1 July 2010 in Darwin.

The Court Proceedings
6.The section 28 applications for CH and KH had not been served but were brought before the court on the same day as the application (16 June 2010) and the court on that day proceeded to hear the matters ex parte and granted interim orders (“the interim DVO’S”) imposing full non contact and violence restraints on the defendant. The matters were then adjourned to 25…

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 Police v RA

Details

AGLC: Police v RA [2010] NTMC 61
Case: [2010] NTMC 61
Decision Date: 6 October 2010

CaseChat Overview and Summary

The case involved the Commonwealth Police and a person, RA, and was heard in the Magistrates' Court of Victoria. The dispute centred around the Commonwealth Police bringing an application under the Domestic and Family Violence Act 2011 (Vic) to seek a restraining order against RA. The application was subsequently dismissed by the Magistrates' Court, and the Commonwealth Police sought to appeal the decision. The main legal issue before the court was whether the Magistrates' Court had erred in its assessment of the application as unreasonable. The court had to determine whether the application was frivolous, vexatious, or an abuse of process, or if it was made in bad faith. The court found that the application did not meet the criteria for being unreasonable, and therefore, the appeal was dismissed. The court held that the Magistrates' Court had correctly exercised its discretion in dismissing the application. The court also noted that the Commonwealth Police had not provided any compelling evidence to support their application. In dismissing the appeal, the court emphasised the importance of ensuring that applications under the Domestic and Family Violence Act are not used as a means to harass or intimidate others. The final orders of the court were that the appeal be dismissed, and the costs of the appeal be paid by the Commonwealth Police.

Orders