Singh v Kaur

[2019] ACTSC 270

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
s 53 of the Act from being appealed – appeal struck out

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

1. 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.

1. 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.

1. The respondent on 3 September 2019 filed an Application in Proceeding seeking to strike out the appeal as incompetent.

1. 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.

1. It is apparent that none of the paragraphs of s 92 extend to cover a dismissal order under s 53.

1. 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…