Singh v Kaur
[2019] ACTSC 270
•27 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Singh v Kaur |
Citation: | [2019] ACTSC 270 |
Hearing Date: | 27 September 2019 |
DecisionDate: | 27 September 2019 |
ReasonsDate: | 30 September 2019 |
Before: | Crowe AJ |
Decision: | See [16] |
Catchwords: | PRACTICE AND PROCEDURE – APPEAL – Application to strike out appeal – where the Magistrate dismissed an application for a protection order under s 53 of the Family Violence Act 2016 (ACT) – where s 92 of the Act prevents a decision made under |
Legislation Cited: | Domestic Violence and Protection Orders Act 2008 (ACT) s 96 Domestic Violence and Protection Orders Regulation 2009 (ACT) reg 70 Family Violence Act 2016 (ACT) ss 53, 92 |
Cases Cited: | GJ v AS (No 3) [2015] ACTCA 31 |
Parties: | Harpreet Singh (Appellant) Gagandeep Kaur (Respondent) |
Representation: | Counsel Self-represented (Appellant) B Hamack (Respondent) |
| Solicitors Self-represented (Appellant) Legal Aid ACT (Respondent) | |
File Number(s): | SCA 38 of 2019 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 15 July 2019 Case Title: Singh v Kaur Court File Number: FVO 244 of 2019 |
Crowe AJ
Mr Singh (the appellant) filed a notice of appeal dated 5 August 2019 in relation to an order made by Magistrate Morrison on 15 July 2019 dismissing the appellant’s application for a protection order under the Family Violence Act 2016 (ACT) (the Act) in relation to the respondent. The Magistrate dismissed the application pursuant to
s 53 of the Act on the basis that the appellant was neither present nor represented on the return date.
Section 53 provides:
53 Applicant not present at return of application
If the applicant is not present, personally or by a representative, at a time when an application for a protection order is returned before the Magistrates Court, the court must—
(a) dismiss the application; or
(b) adjourn the proceeding.
The respondent on 3 September 2019 filed an Application in Proceeding seeking to strike out the appeal as incompetent.
The basis for the respondent’s application is that s 92 of the Act does not grant a right of appeal from a decision made under s 53. Section 92 is set out in these terms:
92 Appealable decisions
The following decisions by the Magistrates Court under this Act are appealable:
(a)the making, amending or revoking of a final order;
(b)a refusal to make, amend or revoke a final order;
(c)a decision mentioned in section 91 made on the review of a consent order.
It is apparent that none of the paragraphs of s 92 extend to cover a dismissal order under s 53.
In GJ v AS (No 3) [2015] ACTCA 31 the Court (Refshauge, Rangiah JJ and Walmsley AJ) considered an appeal from a decision of Penfold J, who had dismissed an appeal from a decision of Magistrate Dingwall in which he dismissed the appellant’s application for a personal protection order against the respondent. That application had been made under the Domestic Violence and Protection Orders Act 2008 (ACT) (the DV Act), which was the predecessor of the Act. The DV Act was repealed with the commencement of the Act.
Penfold J had concluded that the Magistrate had dismissed the application under
reg 70 of the Domestic Violence and Protection Orders Regulation2009 (ACT), which stated:
70Dismissal 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.
The regulation dealing with discontinuance made it clear that a discontinuance did not prevent the applicant from bringing a further application in relation to the matters the subject of the dismissed application.
Section 96 of the DV Act was, substantively, in the same terms as s 92 of the Act.
Penfold J held that the appeal against, effectively, a dismissal for want of prosecution, was incompetent as it did not fall within s 96.
The Court of Appeal upheld her Honour’s conclusion. Rangiah JJ and Walmsley AJ (with whom Refshauge J agreed) said:
[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.
In my view a dismissal under s 53 is indistinguishable from a dismissal under the former reg 70. Although s 53 does not expressly equate an order dismissing proceedings due to the absence of the applicant to a discontinuance, it is plain that such an order is not made after a decision on the merits. In that sense, there is no “final order” for the purposes of s 92.
It follows from [12] that there is no right of appeal conferred by s 92 in relation to a decision made in accordance with s 53. It also follows that the dismissal under s 53 does not operate to prevent the appellant from commencing a new proceeding for a protection order in relation to the matters which were the subject of his dismissed application.
In my view the Act provides the only means by which an appeal can be brought from proceedings under its provisions. The intent of s 92 is to restrict appeals to final orders of the Magistrates Court.
I heard the submissions of the parties on Friday 27 September 2019 and ordered that the appeal be struck out as incompetent. These are my reasons for making that order.
The orders of the Court
The orders of the Court, as made on 27 September 2019, are as follows:
(1) The appeal is struck out as incompetent.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 30 September 2019 |
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