APPEAL – Appeal from Magistrates Court dismissing applications for personal protection orders – whether denial of procedural fairness – whether representation in Magistrates Court was a conflict of interest – whether magistrate failed to take into account contradictory evidence – appeals dismissed

Legislation Cited:

Court Procedures Act 2004 (ACT) s 65

Court Procedures Rules 2006 (ACT) rr 280, 5014(1)(b)

Human Rights Act 2004 (ACT) ss 8, 10, 12, 13, 16, 21, 28, 29, 30, 40(2)(b), 40B

Personal Violence Act 2016 (ACT) ss 11, 21(c), 26, 48, 67, 72, 84, 85

Cases Cited:

Commonwealth v Davis Samuel Pty Ltd [2008] ACTSC 59

Commonwealth v Davis Samuel Pty Ltd (No 2) [2008] ACTSC 60

Damjanov v Maley [2002] NSWCA 230; 55 NSWLR 149

Federated Engine Drivers and Fireman’s Association v The Broken Hill Pty Co Ltd (1913) 16 CLR 245

Galladin Pty Ltd vAimnorth Pty Ltd (1993) 60 SASR 145

Hamod v New South Wales [2011] NSWCA 375

House v The King (1936) 55 CLR 499

Nangus Pty Ltd v Charles Donovan Pty Ltd (in liq) [1989] VR 184

O’Toole v Scott [1965] AC 939

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82

Parties:

Eric Polleycutt (Appellant)

Lisa Aldcroft (Respondent in proceedings SCA 84 of 2017)

William Raymond Aldcroft (Respondent in proceedings SCA 85 of 2017)

Aleah Taylor (Respondent in proceedings SCA 69 of 2017)

Representation:

Self-Represented (Appellant)

Self-Represented (Respondent in proceedings SCA 84 of 2017)

Self-Represented (Respondent in proceedings SCA 85 of 2017)

Self-Represented (Respondent in proceedings SCA 69 of 2017)

File Numbers:

SCA 69, 84, 85 of 2017

Decision under appeal:

Court: ACT Magistrates Court

Before:        Special Magistrate Cush
(proceedings RO 249 of 2017)
Magistrate Theakston
(proceedings RO 105 and 107 of 2017)
Date of Decision:     27 July and 1 August 2017
(proceedings RO 249 of 2017)
20 September 2017
(proceedings RO 105 and 107 of 2017)
Case Title:     Polleycutt v Aldcroft; Polleycutt v Taylor

File numbers: RO 249 of 2017; RO 105 and 107 of 2017

McWilliam AsJ:

1. The appellant, Mr Eric Polleycutt, applied in the Magistrates Court for personal protection orders in respect of three members of the same family: Lisa and William Aldcroft, who are husband and wife, and their daughter, Aleah Taylor (collectively, the respondents). They are his former neighbours and the genesis of the dispute was Mr and Mrs Aldcroft’s decision to build a residential unit at the back of their property in which it was intended Ms Taylor would live. All three applications were dismissed and the appellant now appeals to this Court, pursuant to ss 84 and 85 of the Personal Violence Act 2016 (ACT) (PV Act).
2. The appeal in relation to Ms Taylor is from orders 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.

Continue reading Polleycutt v Aldcroft

Details

AGLC: Polleycutt v Aldcroft [2019] ACTSC 174
Case: [2019] ACTSC 174
Decision Date: 5 July 2019

CaseChat Overview and Summary

- Parties, Nature of Dispute, and Court
Eric Polleycutt (the appellant) appealed decisions of the ACT Magistrates Court that dismissed his applications for personal protection orders against Lisa and William Aldcroft, and their daughter Aleah Taylor. The appeals were heard in the Supreme Court of the Australian Capital Territory by McWilliam AsJ.

- Legal Issues
The legal issues included whether there was a denial of procedural fairness in the representation of Aleah Taylor by her father, whether the magistrate erred in not considering certain evidence, and whether there was a denial of procedural fairness in the costs hearing. Additionally, the court considered whether there were breaches of the appellant's human rights.

- Court's Reasoning and Outcome
The court found that there was no legal error in the representation of Aleah Taylor or in the joint representation of the Aldcrofts. The court also found no error in the magistrate's consideration of evidence or in the separate listing of the proceedings. However, the court did find a denial of procedural fairness in the costs hearing, as the appellant was not given sufficient opportunity to respond to the costs affidavit. The court set aside the costs order and ordered the parties to notify the court of their intentions regarding the costs issue.

- Final Orders
The court allowed the appeal in part, setting aside the costs order and apportioning costs accordingly. The court otherwise dismissed the appeals and ordered the appellant to pay the respondents' costs in the respective proceedings. The parties were also instructed to notify the court of their intentions regarding the costs issue within 7 days.

Orders