Rilak (No 2)
[2022] FedCFamC1A 100
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Rilak (No 2) [2022] FedCFamC1A 100
Appeal from: Orders dated 15 February 2022;
Tsocas & Rilak (No 4) [2022] FedCFamC1F 296
Appeal number(s): NAA 48 of 2022 File number(s): SYC 2062 of 2010 Judgment of: ALDRIDGE J Date of judgment: 1 July 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant seeks to appeal against the dismissal of a recusal application, the refusal to grant leave to file an application seeking to set aside the vexatious proceedings order and procedural orders – No reasonable grounds established – Where the appeal has no prospect of success – Application for leave to appeal dismissed. Legislation: The Constitution s 73
Family Law Act 1975 (Cth) ss 4(1), 69ZR, 94(1), 102NA, 102QB, 102QG
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7(1), 26, 28(3)
Federal Court of Australia Act 1976 (Cth) ss 4, 25
Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019 (Cth)
Cases cited: Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167
Gadde & Gadde [2019] FamCAFC 116
Kabat & Garacia [2019] FamCAFC 191
Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1
Re the Will of F.B. Gilbert (dec.) (1946) 46 SR (NSW) 318
Reema & Baboor [2021] FedCFamC1A 19
Rilak [2021] FedCFamC1A 68
Rilak & Tsocas (No. 8) [2015] FamCA 1235
Rilak & Tsocas [2017] FamCAFC 26
Robeck & Robeck [2018] FamCAFC 201
Sargent & Selwyn (2017) FLC 93-812; [2017] FamCAFC 228
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
Tsocas & Rilak (No. 2) [2021] FedCFam1F 290
Tsocas & Rilak (No 3) [2022] FedCFamC1F 12
Yule & Junek (1979) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 63 Date of last submission: 20 June 2022 Date of hearing: Heard by way of written submissions Place: In Chambers The Applicant: Self-represented litigant ORDERS
NAA 48 of 2022
SYC 2062 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONMS RILAK
Applicant
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
1 JULY 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 15 March 2022 is amended so as to include an application for leave to appeal against the orders made on 6 May 2022.
2.The Application in an Appeal filed on 15 March 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
By an Application in an Appeal filed on 15 March 2022, Ms Rilak (“the applicant”) seeks the leave of the Court pursuant to s 102QG(3) of the Family Law Act 1975 (Cth) (“the Act”) to file an appeal against a set of orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 15 February 2022 (as amended on 6 May 2022) and another set of further orders made on 6 May 2022. On 4 February 2020, Gill J made orders under s 102QB of the Act prohibiting the applicant from instituting proceedings without leave.
In addition to the leave required under s 102QG of the Act, leave is required under s 28(3)(f) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) to appeal a decision of a judge exercising original jurisdiction rejecting an application for disqualification.
Orders made on 15 February 2022 as amended on 6 May 2022
The orders the subject of the proposed Notice of Appeal, which was filed with the application on 15 March 2022, were Orders 1, 5, 6 and 7 made on 15 February 2022.
It emerges from his Honour’s reasons, which were delivered on 6 May 2022, that the intended order that was to be made as the first order (that is, leave being granted to bring the recusal application) was not made. On that day, the earlier orders of 15 February 2022 were amended accordingly.
Those orders the subject of the proposed appeal are:
·The dismissal of the applicant’s application seeking the disqualification of the primary judge (Order 1 and amended as Order 2);
·An order requiring the applicant to file a consolidated contravention application and a single consolidated affidavit with the applicant being limited to six contraventions (Order 5 and amended as Order 6);
·An order under s 102NA(2) of the Act prohibiting the parties from cross-examining each other personally (Order 7 and amended as Order 8); and
·An order requiring the parties to complete the relevant form for the cross-examination scheme and provide it to Legal Aid (Order 7 and amended as Order 8).
Reasons delivered and orders made on 6 May 2022
There is no doubt that a judge may deliver reasons after the making of orders but, as is comprehensively explained in Sargent & Selwyn (2017) FLC 93-812 at [68]–[82], it is not a desirable course, and one which should only be taken where the interests of justice require it (see also Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28 per Chernov JA at [40]). The determination of the present application has been delayed whilst waiting for the reasons and by the need for the applicant to prepare further submissions based on the reasons.
The orders made on 6 May 2022 the subject of the proposed appeal are:
·The dismissal of the applicant’s application for leave to file an application seeking to set aside a vexatious proceedings order (Order 1) and
·The dismissal of the applicant’s application for leave to file a further contravention application (Order 2).
THE PROPOSED APPEAL
This is the second Application in an Appeal by the applicant to seek leave to appeal against a decision of the primary judge to disqualify himself. The first was dismissed (Rilak [2021] FedCFamC1A 68).
The applicant’s proposed grounds of appeal are:
With respect to Order 2 of 15/02/2022
Ground 1: His Honour erred in law and demonstrated ostensible bias in failing to recuse for publishing a lie in his December reasons
Ground 2: His Honour erred in law and/or demonstrated ostensible bias in failing to recuse for repeating and/or softening a lie in his January reasons.
Ground 3: His Honour erred in law and/or demonstrated ostensible bias in failing to recuse for manufacturing speculation.
Ground 4: His Honour erred in law and/or demonstrated ostensible bias in failing to recuse for insufficiently theorised assertions.
Ground 5: His Honour erred in law and/or demonstrated ostensible bias in failing to recuse for making a misleading assertion.
Ground 6: His Honour erred in law and/or demonstrated ostensible bias in failing to recuse for ignoring evidence and submissions in his January reasons.
With respect to order 2 of 15/02/2022
Ground A:
(a)His Honour erred in holding that the claim for apprehended bias was defeated and/or partly defeated by s 69ZR(3) of the Act (judgment at [21]).
(b) But if s 69ZR did apply, His Honour erred in failing to exercise discretion in relation to s 69ZR (3) of the Act (judgment at [23]).
(c) But if His Honour did exercise discretion in relation to s 69ZR (3), His Honour erred in failing to exercise discretion to recuse, in whole or part as a result of misunderstanding the policy of the provision and/or mischaracterising the [applicant’s] expression of views (judgment at [23]).
Ground B:
(a) His Honour was insufficiently dispositive in holding that application of the common law would result in a no-recusal outcome (judgment at [25]).
(b) His Honour erred in holding that ‘no fair-minded lay observer would reasonably apprehend that [His Honour] could not bring an impartial and unprejudiced mind to the adjudication (judgment at [25]).
With respect to Order 6 of 15/02/2022
Ground 7: His Honour exceeded the scope of case-management power afforded to him either inherently or under the Rules.
Ground 8: His Honour erred in law and/or demonstrated ostensible bias (acted prejudicially) in that the consolidation aspect of the order served no legitimate purpose and unduly burdened the applicant.
Ground 9: His Honour prejudiced the administration of justice, and/or breached his public duty to justice being seen to be done, and/or demonstrated ostensible bias (acted prejudicially) by ordering the applicant to reduce the number of charges laid against the respondent.
Ground 10: His Honour prejudiced the administration of justice, and/or breached his public duty to justice being seen to be done, and/or demonstrated ostensible bias (acted prejudicially) by ordering the applicant to limit the number of charges laid against the respondent to six.
Ground 11: His Honour erred in law, and/or prejudiced the administration of justice, and/or breached his public duty to justice being seen to be done, and/or demonstrated ostensible bias (acted prejudicially) by in effect ordering the applicant to withdraw numerous charges - those to be withdrawn being consistent in number with all the charges other than the number of charges that had already been part-heard and found prima facie established by Justice Henderson - potentially creating a situation where res judicata would apply against the applicant to prevent her from re-filing the withdrawn charges at a later date. (It should be noted that the number of charges for which leave had already been granted far exceeded six.)
With respect to Order 6 of 15/02/2022
Ground C: His Honour erred in holding that ‘expand[ing] the pool of alleged contraventions beyond that which has already been allowed’ would be ‘to encourage vexatious litigation’ (judgement at [28]).
With respect to Order 7 and 8 of 15/02/2022
Ground 12: His Honour erred in holding that s 102NA(1)(c)(i)-(iii) applied to the case.
Ground 13: His Honour erred in failing to exercise discretion under s 102NA(1)(c)(iv).
(As per the original)
In her further written submissions filed on 20 June 2022, the applicant also sought to appeal against the orders made on 6 May 2022 in the following terms:
With respect to Order 1 of 06/05/2022
Ground D: His Honour denied procedural fairness.
Ground E: His Honour misrepresented the effect of the applicant’s submissions, such that the applicant’s arguments were not dispositively reasoned.
Ground F: His Honour erred in holding that ‘none’ of the material proffered by the applicant indicates that there was fraud (judgement at [35]).
Ground G: His Honour erred in holding that even if there was fraud, there is ‘nothing’ to suggest that Gill J’s orders were tainted by fraud (judgement at [35]).
Ground H: His Honour erred in holding that the set-aside application was ‘an attempt to re-litigate unsuccessful litigation when there was at that time another avenue of relief’ (judgement at [35]).
With respect to Order 2 of 06/05/2022
As per ground 10.
His Honour didn’t consider applications on its own merits.
(As per the original)
It emerges from his Honour’s reasons that the applicant was actually successful in obtaining leave to apply for the recusal but failed on the recusal application itself. The applicant, was, of course, under the belief that she had been refused leave on 15 February 2022 because that was the form of the order until it was corrected on 6 May 2022. This has understandably, led to some confusion in the applicant’s grounds and submissions.
Given those matters, it seems to me to be the better course to treat the application as one for leave to appeal against both sets of orders. The submissions have addressed both sets of orders. An order will be made amending the Application an in Appeal filed on 15 March 2022 to include a claim for leave to appeal the 6 May 2022 orders.
However, even having regard to these difficulties, the proposed grounds of appeal are largely repetitive and histrionic, neither of which bodes well for a grant of leave.
The recusal application
The essence of the applicant’s case is that that it was her position that “the child’s paternal sexual assault disclosure was not thoroughly investigated” (Applicant’s affidavit filed on 25 March 2022, paragraph 13). In her affidavit she referred to a vaginal swab taken from the child which, upon testing, showed streptococcus anginosis to have been present. This, the applicant goes on to assert, supports her claim of possible abuse.
Doing the best I can, this seems to be a reference to the decision of Loughnan J who made final parenting orders in 2015 in Rilak & Tsocas (No. 8) [2015] FamCA 1235. In those reasons, his Honour recorded that on 7 July 2015 a vaginal swab was taken which provided a negative result (at [152]). The applicant asserts that this is contrary to a report of Dr Katherine Brown, whose report was, apparently, an exhibit at the hearing.
In the reasons of 6 December 2021 (Tsocas & Rilak (No. 2) [2021] FedCFam1F 290), his Honour referred to the applicant’s many allegations and said:
17.These matters were thoroughly investigated by the Court, the Full Court, and Gill J. …
The applicant submits that despite the primary judge “acknowledging …at [8]” this “lie” in the reasons of 13 January 2022, his Honour did not correct the record or apologise, but continued to say “[t]he matter has been tested in evidence before the Court, both at trial and on appeal” (Applicant’s affidavit filed on 25 March 2022, paragraphs 14–15). This, according to the applicant, indicates prejudgment on the issue of sexual abuse.
In those reasons (Tsocas & Rilak (No 3) [2022] FedCFamC1F 12) his Honour said:
8.The second impression that is palpable is that the [applicant] has a lack of confidence and perhaps a mistrust in the legal system, and in particular the Court. This is reflected in the [applicant’s] submissions. For example, the [applicant] accused me of lying in the reasons for judgment dated 6 December 2021 at [17]. The [applicant] stated that I was part of the system that has taken her child away and that the Court has been part of what she described as a “legal kidnap,” of the child. She described this Court as a “pseudo Court.”
(Applicant’s affidavit filed on 25 March 2022, paragraph 8)
The primary judge acknowledged the matters asserted, but no more.
In his reasons of 6 May 2022, in refusing the recusal application, his Honour dealt with this aspect of the matter by referring to s 69ZR(1)(b) of the Act, which permits the Court to determine a matter arising out of the proceedings and to Reema & Baboor [2021] FedCFamC1A 19, which provides that such a determination does not require that judge to disqualify him or herself from the balance of the proceedings.
With respect to his Honour, I do not see what “determination” was made in the reasons of 6 December 2021 and 13 January 2022. It is simply a matter of history to say that the applicant’s allegations of sexual abuse were the subject of the proceedings before Loughnan J.
I consider that saying that matters had been investigated hardly seems such a determination, even if the matters were described as fully investigated. This was noted in the introduction and not as a contested finding.
This, of course, is the applicant’s point. It is her case that the allegations have never been fully investigated. This, however, is a descent into semantics because the fact remains that the issue was ventilated and if Loughnan J overlooked significant evidence that was a matter for appeal on that ground. However, that is not the case. Justice Loughnan recorded that although initially the applicant had made allegations of sexual abuse, by the end of the case “it [was] not argued … that the Court could find that [the respondent] has sexually abused [the child]” (at [117]) and “it is now agreed that the Court cannot find that [the respondent] sexually abused [the child], nor that there is an unacceptable risk of him doing so in the future” (at [157]). These paragraphs were not challenged in the appeal (Rilak & Tsocas [2017] FamCAFC 26 at [153]).
More importantly, as the primary judge also found, it is difficult to see how, in referring to the introductory paragraphs of two earlier extensive hearings, affirmed on appeal, with each rejecting the allegations of sexual abuse, the particular comment would indicate to a fair minded lay observer that the primary judge would not decide the case on its merits. It was an entirely factual observation (there was such an investigation and the allegation of abuse was not pressed, at least before Loughnan J) although the applicant does not accept that it reached the correct result.
Any error in describing this as a prior determination is, therefore, entirely immaterial to the outcome (Conway v The Queen (2002) 209 CLR 203).
In the reasons of 6 May 2022, his Honour said:
25.Even if I am wrong, and s 69ZR has no role to play in this case, the application of the common law results in the same conclusion. None of the matters to which the Applicant refers are either my findings of fact or of law, and even if they were, no fair-minded lay observer would reasonably apprehend that I could not bring an impartial and unprejudiced mind to the adjudication of the forthcoming contravention application hearing or the continued case management of the matter. It must be remembered that the fair minded observer is deemed to be reasonable, that is, to have a measure of objectivity. With the greatest of respect to the Applicant, she cannot substitute her own perceptions of reasonableness with those of the fair-minded lay observer.
The applicant does not identify what is said to be erroneous in this reasoning. I do not see an error.
Importantly, there is no articulation “of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]).
The primary judge has listed a number of contravention applications for hearing later in the year. It is very difficult to see how comments recording the nature of the hearing before Loughnan J or Gill J, or the understanding of the applicant could bear upon the outcome of those contravention applications.
As to the balance of the applicant’s grounds concerning recusal are concerned, it is difficult to understand what is meant by “manufacturing speculation” or “insufficiently theorised assertions”, which the applicant asserts characterise his Honour’s comments or how they give rise to an apprehension of bias.
In her further submissions, the applicant describes the primary judge as recently lying and inappropriately theorising. The casting of such aspersions without a satisfactory basis is conduct that points to the oppressive and vexatious nature of the proposed appeal.
The applicant submitted that a subjective test should apply, as opposed to the objective test stated by the High Court, because “it violates the integrity of a Court for it to legally disable a litigant and then go on to fail to give that litigant confidence that they are being treated with judicial impartiality and independent competence” (Applicant’s written submissions filed on 20 June 2022, paragraph 3). The subjective test does not apply.
I do not see any prospect of the applicant being granted leave under s 28(3)(f) of the FCFCOA Act and this aspect of the application for leave under s 102QG of the Act must also fail.
Order to set aside the order made under s 102QB of the Act
At [29]–[35], his Honour dealt with the application to set aside the order made under s102QB of the Act made by Gill J. The applicant’s proposed Grounds D to H deal with the refusal to set that order aside.
The applicant says that she was denied procedural fairness because the hearing of the application was sprung upon her, that her affidavit was not considered and that his Honour did not “judicially examine the veracity of the facts” (Applicant’s written submissions filed on 20 June 2022, paragraph 23).
It must be recognised that not every breach of procedural fairness requires a rehearing. If there was no merit at all in the application, the applicant would need to show why any procedural unfairness required a rehearing.
It appears that, in fact, the affidavit was taken into account (at [7(c)]. At [35], his Honour found that the material relied on did not establish fraud and then, even if it did, that fraud was not shown to taint the orders of Gill J.
I am not satisfied that the application being called on for hearing unexpectedly, if that is what occurred, resulted in any unfairness that requires a rehearing.
The applicant submitted:
21. His Honour claimed that the arguments of the [applicant] were ‘Firstly, the Respondent misrepresented his financial circumstances and their origins in the litigation history. Secondly, the Respondent misrepresented the potential living arrangements of the child and his intention to move the child’s residence…’ (judgement at [32]). In fact, the [applicant’s] arguments were to the effect: Firstly, the Respondent misrepresented his financial circumstances, which was directly and materially relevant to the [applicant] being found vexatious as a result of the connection between the number of applications brought by the [applicant] and the [respondent’s] putative destitution. Secondly, the Respondent misrepresented the potential living arrangements of the child and his intention to move the child’s residence, which was directly and materially relevant to the fact that Rice and Asplund conditions objectively existed to support the [applicant’s] new parenting application when the [respondent] was arguing that they did not.
(Emphasis in original)
I am unable to see the connection between these allegations and the order made by Gill J.
I do not see that there any prospects of success on this aspect of the proposed appeal.
The orders as to filing a consolidated contravention application
The orders made as to the contraventions were procedural orders which “did not determine the proceedings, nor any issue in the proceedings, nor did they conclude any substantive legal rights of the parties” per Kent J in Kabat & Garacia [2019] FamCAFC 191 at [2].
As such they are not decrees within the meaning of “decree” as defined by s 4(1) of the Act.
Prior to the introduction of the FCFCOA Act, appeals were from “decrees” (s 94(1)(a) of the Act) which was defined as meaning “decree, judgment or order”.
The applicable provision is now s 26 of the FCFCOA Act, which empowers the Federal Circuit and Family Court of Australia (Division 1) to hear and determine appeals from judgments as opposed to decrees, and this does not, in my view change the principles to be applied. This is because s 7(1) of the FCFCOA Act defines a judgment as meaning:
… a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of the Family Law Act 1975.
Thus the words “decision and sentence” have been added to the definition.
It is difficult to see that the inclusion of the word “decision”, which did not previously appear in the definition, was intended to overrule the existing well-established principles and to enable appeals against decisions of any kind even though they may be entirely procedural and effected no change in the determination of the rights of the parties.
The Explanatory Memorandum to the Federal Circuit and Family Court of Australia Bill 2019 (Cth) (“the Explanatory Memorandum”) said the following about s 26 of the FCFCOA Act, strongly suggesting that there was no legislative intention to change the existing range of appellate jurisdiction:
89.This clause reflects the retention of the existing Family Court’s appellate jurisdiction in the FCFC (Division 1).
Section 73 of the Constitution gives the High Court of Australia jurisdiction to hear appeals from “all judgments, decrees, orders, and sentences”. Section 4 of the Federal Court of Australia Act defines “judgment” for the purposes of s 25 of that Act as “a judgment, decree or order, whether final or interlocutory; or a sentence; and includes a conviction”. Section 26 of the FCFCOA Act is closer to these provisions than its predecessor.
The question is, what is to be made by the inclusion of “decisions”, which, if taken literally, would include all decisions of any kind. Such an approach would render the other words in the definition entirely otiose.
There is no room to impute an intention by the Parliament to overrule decades of jurisprudence about the meaning of “judgment” without the FCFCOA Act expressly saying so. No such express intention is evident, particularly given the provisions of the Explanatory Memorandum.
Thus, in my view, the principles set out in cases such as Commonwealth v Mullane (1961) 106 CLR 166; Yule & Junek (1979) 139 CLR 1; Tallant & Kelsey (2016) FLC 93-742; Robeck & Robeck [2018] FamCAFC 201; Meadows & Meadows (2019) FLC 93-883; Gadde & Gadde [2019] FamCAFC 116 and Kabat and Garacia [2019] FamCAFC 191 continue to apply.
On the application of these principles, the proposed appeal is incompetent.
In case I am wrong as to this, it is necessary to consider the prospects of successfully appealing the orders made as to the content of the application and affidavits. These are clearly interlocutory orders and leave to appeal is required (see s 28(3)(e) of the FCFCOA Act and reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth)).
Courts exercise great restraint in granting leave to appeal against procedural orders. At 323, Sir Frederick Jordan said in Re the Will of F.B. Gilbert (1946) 46 SR (NSW) 318:
… I am of the opinion that, … there is a material difference between the exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to Court of Appeal.
The applicant notes that she has lodged over 110 contravention charges against the respondent. She records that on 29 April 2021, Henderson J found that a prima facie case had been established in six cases and that on 15 October 2021, the primary judge gave leave to the applicant to file a contravention application. Thus, she submits that she should not be limited to relying on six contraventions and being required to withdraw the others.
The flaw in that argument is that the primary judge determined to hear one contravention application involving no more than six charges, of the applicant’s choice. I do not see how such an order obliges the applicant to withdraw any charges and none has been dismissed. However, if the parenting orders are varied in some way, and the contravention application is to be heard in September 2022, the remaining contraventions yet to be determined may become otiose because the purpose of the contravention procedure is to ensure compliance with the orders in place.
These are matters yet to be determined. The point is that no question of substantive rights, that is, the outcome of any contravention application, has been decided.
Order under s 102NA of the Act prohibiting the parties from cross-examining each other personally
The applicant asserts that the primary judge erred in holding that s 102NA(1)(c)(i)–(iii) applied to the proceedings and that his Honour failed to exercise discretion under s 102NA(1)(c)(iv) of the Act (Grounds 12 and 13). She contends that his Honour should have “exercised discretion differently due to the prejudicial effect of the burden on the applicant” and that she “has little confidence in Legal Aid” (Applicant’s written submissions filed on 20 June 2022, paragraphs 29–30).
His Honour was satisfied, based on the applicant’s extensive allegations detailing family violence perpetrated, that it was not in her own interests to cross-examine or be cross-examined by the respondent. The fact that the applicant believes Legal Aid will not assist her to her own standards does not establish error.
I see no error by the primary judge in making such an order.
Order dismissing the applicant’s application for leave to file a further contravention application
The primary judge did not grant leave to the applicant to file a further contravention application on the basis that this contravention application was based on the same substrate of facts as those contravention applications which his Honour ordered be consolidated and fixed for hearing at a later date. The applicant submits that his Honour did not consider the applications “on its own merits” and also relies on Ground 10.
Given that the applications are based on the same substrate of facts and the applicant is yet to be heard on the contravention applications of her choosing, I do not see an error by the primary judge in dismissing the application for leave and unnecessarily expanding the number of contravention applications on file.
CONCLUSION
In these circumstances the applicant is most unlikely to receive a grant of leave and it is difficult indeed to see how any appeal could succeed.
It follows then that there is no realistic prospect that the proposed appeal could succeed. The application for leave to appeal must be refused.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 1 July 2022
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