Stark (a pseudonym) v Hillam (a pseudonym) - [2022] ACTSC 101

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Stark (a pseudonym) v Hillam (a pseudonym)
Citation:	[2022] ACTSC 101
Hearing Date(s):	21 April 2022
DecisionDate:	21 April 2022
Before:	McCallum CJ
Decision:	The application is refused.
Catchwords:	APPEAL — General Principles — Appeal of orders under Family Violence Act — Application for hearing of appeal by Full Court — Whether appeal involves a collateral attack on a decision of a Supreme Court judge
Legislation Cited:	Family Violence Act 2016 (ACT), s 93 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111(2) Supreme Court Act 1933 (ACT), ss 13, 68C Human Rights Act 2004 (ACT)
Parties:	“Jim Stark” (a pseudonym) ( Applicant) “Josie Hillam” (a pseudonym) ( Respondent)
Representation:	Counsel H Selby ( Applicant) S Whybrow ( Respondent)
Solicitors Armstrong Legal ( Respondent)
File Number(s):	CA 38 of 2021
Decision under appeal:	Court/Tribunal: Magistrates Court Before: Magistrate Stewart Date of Decision: 7 October 2021 Court File Number(s): FVO 377/2020

McCALLUM CJ:

These are proceedings on appeal from the Magistrates Court exercising jurisdiction under the Family Violence Act 2016 (ACT). Because of the nature of the issues in the proceedings, orders were made by consent shortly after the commencement of the appeal pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibiting identification of either party. In those circumstances they are referred to by the pseudonyms “Jim Stark” as applicant and “Josie Hillam” as respondent.

In the proceedings in the Magistrates Court, each party sought an order against the other under the Family Violence Act. The Magistrate dismissed Mr Stark’s application and ordered him to pay Ms Hillam’s costs. That decision was given ex tempore at the conclusion of the hearing. Ms Hillam’s application was granted after his Honour reserved his decision for some little time. Again, there was an order that Mr Stark pay Ms Hillam’s costs.

The proceedings under the Family Violence Act followed criminal proceedings against Mr Stark in which he was tried by judge alone for five sexual offences alleged to have been committed against Ms Hillam. The criminal proceedings were determined at the conclusion of the hearing by Loukas-Karlsson J and resulted in the applicant being acquitted of all five counts. Her Honour reserved her reasons for entering those verdicts. Those reasons have now been published.

The applications for orders under the Family Violence Act were heard after the date of publication of the reasons of Loukas-Karlsson J but it appears that it was not until an adjourned date that the Magistrate received or indicated that he had obtained the judgment of Loukas-Karlsson J in the criminal proceedings. In very brief summary, the applicant contends that the appeal against the decision of the Magistrate granting Ms Hillam’s application under the Family Violence Act is vitiated or liable to be set aside by reason of the fact that the Magistrate wrongly had regard to statements made by Loukas-Karlsson J in her Honour’s reserved judgment.

For that reason by application in the proceedings filed…

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.

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Details

Case: [2022] ACTSC 101
Decision Date

CaseChat Overview and Summary

This case involved an appeal by Jim Stark (referred to by a pseudonym) against a decision of the Magistrates Court made under the Family Violence Act 2016 (ACT). The appeal was heard before McCallum CJ of the Supreme Court of the Australian Capital Territory. Josie Hillam (referred to by a pseudonym) was the respondent in the proceedings. The dispute stemmed from an application for a family violence order by each party against the other. The Magistrate dismissed Mr Stark’s application and ordered him to pay Ms Hillam’s costs. Ms Hillam’s application was granted, with a similar costs order against Mr Stark. The legal issues before the court centred on whether the appeal against the Magistrate's decision granting Ms Hillam’s application should be heard by a Full Court, considering that it might involve a collateral attack on the reasons for decision of Loukas-Karlsson J, who presided over Mr Stark's criminal trial where he was acquitted of all charges.

The court examined the arguments presented by Mr Stark's counsel, H Selby, who contended that the appeal would necessitate a collateral attack on the reasons for decision of Loukas-Karlsson J. Selby argued that such an attack was unseemly and that the matter was of considerable public importance, touching on the publication of reasons in criminal proceedings determined by a judge alone. However, McCallum CJ concluded that several factors militated against granting the order sought by Mr Stark. The court noted that the appeal was effectively a rehearing or a hearing de novo, requiring an assessment of the evidence before the Magistrate. It was more convenient for such an exercise to be undertaken by a single judge. Additionally, potential complications and inconveniences from having the appeal heard and determined by a Full Court, followed by an appeal to the Court of Appeal, further supported the decision. The court also found that the appeal would not necessarily involve a collateral attack on Loukas-Karlsson J’s reasons, as the Magistrate had recorded his independent assessment of the evidence. For these reasons, the application for the appeal to be heard by a Full Court was refused.

The final orders of the court were that the application by Jim Stark for the appeal to be heard by a Full Court was refused. The court did not find it necessary to make further orders regarding the substantive appeal or any other matters. The decision was rendered on the same day as the hearing, 21 April 2022.

Orders