Quach v Butt - [2016] ACTSC 153

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Quach v Butt
Citation:	[2016] ACTSC 153
Hearing Date:	1 July 2016
DecisionDate:	1 July 2016
Before:	Mossop AsJ
Decision:	The application in proceedings dated 7 June 2016 is dismissed with costs.
Catchwords:	PRACTICE AND PROCEDURE – Appeals – Application for personal protection order dismissed – Whether appeal against dismissal competent – Whether summary dismissal amounts to a refusal to make a protection order – Domestic Violence and Protection Orders Act 2008 (ACT), s 96
Legislation Cited:	Domestic Violence and Protection Orders Act 2008 (ACT), s 96 Domestic Violence and Protection Orders Regulation 2009 (ACT), ss 69, 70
Cases Cited:	GJ v AS (2014) 288 FLR 152 GJ v AS (No 3) [2015] ACTCA 31 Health Care Complaints Commissionv Quach [2015] NSWCATOD 2 Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 Yager v The Queen (1977) 139 CLR 28
Parties:	Michael Van Thanh Quach (Appellant) Briana Mary Butt (Respondent)
Representation:	Counsel Self-represented (Appellant) J Maher (Respondent)
Solicitors Self-represented (Appellant) Kamy Saeedi (Respondent)
File Number:	SCA 36 of 2016

MOSSOP AsJ:

Application

These proceedings were commenced by the filing of a notice of appeal on 6 May 2016. They involve an appeal from a decision of Magistrate Morrison dismissing an application for a personal protection order directed to the respondent. By application in proceeding dated 7 June 2016, and filed on 16 June 2016, the respondent seeks an order that the notice of appeal be struck out as incompetent.

The ground for the respondent’s application identified in the application is that the order of Magistrate Morrison on 13 April 2016 is not an appealable decision as defined by s 96 of the Domestic Violence and Protection Orders Act 2008 (ACT) (the Act).

Background

The relevant factual background is identified in the affidavit of Brett Frederick Thomson sworn 7 June 2016 which was relied upon by the respondent in support of the application. With the benefit of that affidavit it is possible to discern the following chronology.

On 26 February 2016 the appellant filed an application for a personal protection order.

On 26 February 2016 the application was adjourned until 7 March 2016.

At the request of the respondent the proceedings were adjourned to 18 March 2016. On that date the respondent foreshadowed an application for summary dismissal. Orders were made requiring the respondent to file and serve any application for summary dismissal and a timetable was set in relation to evidence on that application. The application was listed for hearing on 13 April 2016.

On 13 April 2016 Magistrate Morrison made an order summarily dismissing the application. The terms of the order made by his Honour were: “The application for a Personal Protection Order dated 26 February 2016 is dismissed.” The transcript of the proceedings was not before me.

On 6 May 2016, the appellant filed a notice of appeal appealing against the decision…

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 Quach v Butt

Details

AGLC: Quach v Butt [2016] ACTSC 153
Case: [2016] ACTSC 153
Decision Date: 1 July 2016

CaseChat Overview and Summary

Quach v Butt is a case before the Federal Circuit and Family Court of Australia, concerning an appeal against the dismissal of an application for a personal protection order. The applicant, Quach, sought the protection order against the respondent, Butt, under the Domestic Violence and Protection Orders Act 2008 (ACT). The primary judge dismissed the application and Quach now appeals the decision, contending that the dismissal should be considered as a refusal to grant the protection order, thus entitling Quach to appeal under the relevant legislation.

The central legal issue in this appeal was whether the dismissal of the application for a personal protection order could be deemed a refusal to make a protection order, thereby permitting an appeal. The court needed to interpret the statutory provisions of the Domestic Violence and Protection Orders Act 2008 (ACT) to determine if the dismissal constituted a refusal to grant the order. Specifically, the court had to consider section 96 of the Act, which outlines the circumstances under which an appeal against the dismissal of such an application can be made.

In examining the matter, the court considered that the dismissal of the application did not amount to a refusal to make a protection order. The court reasoned that the dismissal was procedural rather than substantive, as it related to the manner in which the application was handled rather than the merits of the case. Therefore, the dismissal did not trigger the right to appeal as provided under section 96 of the Act. The court concluded that the appeal was not competent, and the application was dismissed with costs.

Orders

Orders of the court

The application in proceedings dated 7 June 2016 is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.