Quach v Butt
[2016] ACTSC 153
•1 July 2016
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 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 of Magistrate Morrison to summarily dismiss his application. Having regard to the issue raised upon this application, it is not necessary to set out or discuss the grounds of appeal identified in the notice of appeal.
Because neither the respondent’s application for summary dismissal nor the transcript of proceedings was before me on the current application it is not possible to identify the precise basis upon which the proceedings were dismissed. However, having regard to the material referred to above it appears that the application and order was one for summary dismissal and was based upon s 69 of the Domestic Violence and Protection Orders Regulation 2009 (ACT) (the Regulation), and I determine this application on that basis.
Relevant statutory provisions
The relevant statutory provisions are ss 69 and 70 of the Regulation and s 96 of the Act. Sections 69 and 70 of the Regulation are as follows:
Division 9.3 Stays and dismissals
69 Summary stay or dismissal
(1)This section applies if, in a proceeding, it appears to the Magistrates Court, in relation to the proceeding generally or in relation to a particular application or part of the proceeding, that—
(a) no reasonable cause of action is disclosed; or
(b) the proceeding is—
(i) frivolous or vexatious; or
(ii) an abuse of the process of the court.
(2)The Magistrates Court may, on the application of the respondent or on its own initiative, order that the proceeding be stayed or dismissed either generally or in relation to the claim for relief.
(3)The Magistrates Court may receive evidence on the hearing of an application for an order under subsection (2).
70 Dismissal for lack of prosecution
(1) This section applies if the applicant in a proceeding on an application—
(a)does not, within a reasonable time, take a step necessary to have the proceeding heard; or
(b) unreasonably takes a step to avoid the proceeding being heard.
(2)The Magistrates Court may, on the application of the respondent and on the terms the court considers just, order that the proceeding be dismissed for lack of prosecution or may make any other order it considers just.
(3) The proceeding is to be treated as if it had been discontinued.
Note Section 48 deals with discontinuance.
Section 96 of the Act provides:
96 Appealable decisions
The following decisions under this Act are appealable:
(a)the making, amending or revoking of a protection order, other than an interim order or emergency order, by the Magistrates Court;
(b)the refusal of the court to make, amend or revoke a protection order, other than an interim order or an emergency order;
(c) a decision mentioned in section 95 made on the review of a consent order.
Submissions
Mr Maher, who appeared for the respondent, submitted that the burden of establishing the competency of the appeal was on the appellant: r 5172(2). He submitted that Magistrate Morrison summarily dismissed the application on the basis that no reasonable cause of action was disclosed, although he submitted that it did not matter which of the elements of s 69 was applied. He submitted that the principal identified in the decision in GJ v AS (No 3) [2015] ACTCA 31 (GJ) should be applied in the present case. He submitted that the dismissal for want of prosecution provided for in s 70 of the Regulation and the capacity to summarily dismiss an application under s 69 of the Regulation are relevantly similar and that neither amounts to a “refusal” to make an order because the magistrate has not determined the application at a final hearing. Rather the dismissal amounted to a refusal to hear the application at all. He relied upon the statement by the Court in GJ (at [35]) that the policy of s 96 was to “provide a right of appeal only to a party to a decision after a final hearing of the merits”.
The appellant made written and oral submissions which did not appear to address the issue being raised by the respondent. The appellant’s submissions related to the effect of the decision of the New South Wales Court of Appeal in Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10. He submitted that the Court had in that case “all but invalidated” the decisions of the New South Wales Civil and Administrative Tribunal in Health Care Complaints Commissionv Quach [2015] NSWCATOD 2 and Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. He made reference to what he said was an order of special Magistrate Mulligan, made on 7 March 2016, that he have a “proper hearing”. In oral submissions he referred to the decision of Mason J in Yager v The Queen (1977) 139 CLR 28 at 43 where his Honour, in the context of a drug prosecution, said that there was no legitimate foundation for resorting to definitions contained in one Act for the purposes of modifying or qualifying another statutory definition contained in a different Act of Parliament.
The decision in GJ v AS (No 3)
GJ was a decision of the Court of Appeal on appeal from a single judge dealing with an appeal from a magistrate. The magistrate had dismissed the appellant’s application for a personal protection order for want of prosecution. One of the issues for determination on the appeal was whether or not the appeal to the Supreme Court was competent in circumstances where the magistrate had dismissed the case under s 70 of the Regulation. During the course of proceedings the appellant told the Court that she had “had enough” and left the courtroom and did not return. Although the magistrate did not identify the ground on which he dismissed the application, on appeal to the Supreme Court Penfold J found that it had been dismissed pursuant to s 70 of the Regulation: GJ v AS (2014) 288 FLR 152 at [150]. Having concluded that the dismissal was under s 70 of the Regulation, Penfold J then dealt with the consequences of that finding as follows:
158.Treating a reg 70 dismissal as a reg 48 discontinuance before a final decision is made would have several significant consequences.
159.First, reg 48(2) specifies that the discontinuance does not prevent the applicant making a further application in relation to the same or substantially the same matter, and that it does not provide a defence to such a further application. The intention seems to be that a discontinued application is not to be revived, but a new application may be made.
160.Secondly, discontinuance under reg 48 does not involve any refusal to make a final PPO. Treating a dismissal as a discontinuance under reg 48 (ie before a final decision is made) presumably includes treating it as not involving a refusal to make a final PPO.
161.The Court Procedure Rules, which do not apply to the DVPO Act unless specific provision to that effect is made (r 4(1)), contain a power to dismiss a proceeding for want of prosecution (r 1110(2)) coupled with a power to amend or set aside a dismissal order made in the absence of the plaintiff “without the need for an appeal” (r 1110(4)). The DVPO Regulations do not contain any equivalent provision, or any other provision directly mitigating the effect of a reg 70 dismissal made in the absence of a party. This in my view is consistent with an interpretation of reg 70 as providing for a dismissal order that, via reg 48, does not operate as any kind of bar to a further application for a PPO.
162.If a reg 70 dismissal is properly treated as not involving a refusal to make a final PPO, then it is not an appealable decision under s 96, and GJ’s appeal against what I have found to be a reg 70 dismissal should be dismissed as incompetent.
On appeal to the Court of Appeal (Refshauge, Rangiah JJ and Walmsley AJ) the Court proceeded on the basis that the proceedings had been dismissed under s 70. The Court concluded that the magistrate’s dismissal for want of prosecution was not a refusal in terms of s 96 of the Act and hence the appeal to the Supreme Court had been incompetent. The relevant portions of the judgment of Rangiah J and Walmsley AJ (with which Refshauge J agreed) are as follows:
35.It is implicit in reg 70 that a dismissal order under it is not made after consideration of the merits of the application. The preservation of the right of an applicant whose application has been dismissed under reg 70 to make a fresh application, in the same way an applicant who discontinues may reapply, is consistent with the policy of s 96, which is to provide a right of appeal only to a party to a decision after a final hearing on the merits.
36.Regulation 70(3) says that once an application has been dismissed for want of prosecution, “The proceeding is to be treated as if it had been discontinued” (emphasis added). Regulation 48(1) provides relevantly: “The applicant in a proceeding...may discontinue...at any time before a final decision is made...”.
37.It follows that an application which reg 70(3) says is to be treated as if it had been discontinued is one in which no final decision has been made.
...
43.We conclude that the Magistrate’s dismissal for want of prosecution was not a “refusal” to make a PPO in the sense used in s 96 of the Act. As the dismissal was not a “refusal”, the appellant had no right to appeal from the order. Accordingly, the appeal to her Honour was incompetent and her Honour correctly so held.
For the purposes of this application the critical question is whether or not the reasoning in GJ applies equally to a dismissal under s 69 so that the conclusion may be reached that such a dismissal was not a refusal to make an order and hence does not give rise to an entitlement to appeal under s 96.
Does the reasoning in GJ v AS (No 3) extend to s 69?
It is clear that the ratio of the decision in GJ is that a dismissal for want of prosecution under s 70 of the Regulation does not involve a “refusal” for the purposes of s 96 of the Act. The question is whether in the light of that conclusion it must follow that a dismissal under s 69 of the Regulation does not involve a “refusal”.
The extracts from the decisions of Penfold J and the Court of Appeal make it clear that it was significant for the purpose of the conclusion that dismissal for want of prosecution under s 70 did not involve a “refusal” for the purposes of s 96. The Regulation provided that the effect of a dismissal was that it was “treated as if it had been discontinued” under s 48.That provision permitted a discontinuance and provided that if proceedings were discontinued the discontinuance did not “prevent a further application being made in relation to the same, or substantially the same, matter” and was not a defence in a proceeding on any further application.
As a consequence, the effect of the discontinuance was that notwithstanding the “dismissal” of the claim, by reason of s 70(3) it was treated as merely stopping proceedings without any determination and in a manner that permitted the claimant to bring the same claim again.
However, where dismissed under s 69 the claim is determined and ends. True it is that it has not been determined on the merits in the sense of being determined after a full hearing. However, the Court has determined that it is a claim which cannot succeed or should not proceed. Rather than, as the respondent sought to characterise it, declining to hear the application, the Court has determined that the application so obviously lacks merit that it was appropriate to decide the application on a summary basis.
I do not consider that the references by the Court of Appeal to the purpose of the provision being to “provide a right of appeal only to a party to a decision after a final hearing on the merits” should be taken as precluding a right of appeal in relation to a dismissal under s 69. First, the statement was made in the context of dealing with s 70 and without reference to s 69. Second, the statement can be explained by the express exclusion from any entitlement to appeal of interim orders and emergency orders. In other words the purpose to which the Court was referring was that disclosed by the specific exclusions from the entitlement to appeal rather than being some broader purpose that would be consistent with the respondent’s submissions in the present case. As a consequence I do not consider that the statement represents considered obiter dicta to which weight should be given in relation to the operation of s 69.
My conclusion is that as a matter of ordinary language and of substance the dismissal of proceedings under s 69 amounts to a refusal to make an order. It does not leave open the possibility that the claimant may bring proceedings in relation to the same cause of action in the way that a claimant whose proceedings are dismissed for want of prosecution under s 70 may do. Therefore it amounts to a “refusal” to make a protection order and is within the scope of s 96 of the Act.
Conclusion
For the above reasons the appeal is not incompetent. Therefore the respondent’s application must be dismissed.
Orders
The orders of the Court are as follows:
1. The application in proceedings dated 7 June 2016 is dismissed with costs.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 5 July 2016 |
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