Stark (a pseudonym) v Hillam (a pseudonym) (No 2) - [2022] ACTSC 272

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Stark (a pseudonym) v Hillam (a pseudonym) (No 2)
Citation:	[2022] ACTSC 272
Hearing Date:	24 June 2022
DecisionDate:	7 October 2022
Before:	Mossop J
Decision:	See [186]
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from family violence order – allegation of actual and apprehended bias - where magistrate had sought additional evidence outside of hearing – magistrate made enquiries of the court registry to understand appellant’s position on costs – whether magistrate erred in failing to recuse himself for bias – application of s 65 of the Family Violence Act 2016 (ACT) – appeal dismissed
Legislation Cited:	Family Violence Act 2016 (ACT), ss 6(b), 8, 13A, 14(1)(b), 34, 65, 73, 93
Cases Cited:	Cavanett v Chambers [1968] SASR 97 Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Re JRL; Ex parte CJL (1986) 161 CLR 342 Russell v Eaton [2020] VSCA 249
Texts Cited:	Explanatory Statement, Family Violence Bill 2016 (ACT)
Parties:	Jim Stark (a pseudonym) ( Appellant) Josie Hillam (a pseudonym) ( Respondent)
Representation:	Counsel H Selby ( Appellant) S Whybrow ( Respondent)
Solicitors Armstrong Legal ( Respondent)
File Number:	SCA 38 of 2021
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 7 October 2021 Court File Numbers: FVO377/2020 & FVO120/2021

MOSSOP J:

Introduction

These proceedings involve an appeal from the Magistrates Court which was exercising jurisdiction under the Family Violence Act 2016 (ACT) (FV Act). The orders from which the appeal is brought are orders made in two different applications for family violence orders. Proceedings FVO 377/2020 involve an application by the respondent (Ms Hillam) against the appellant (Mr Stark). The magistrate made a family violence order in those proceedings. Proceedings FVO 120/2021 were proceedings brought by Mr Stark against Ms Hillam. That application was dismissed by the magistrate.

The proceedings under the FV Act followed criminal proceedings brought against Mr Stark for sexual offences alleged to have been committed against Ms Hillam. There was a jury trial in December 2019. He was acquitted on three counts and the jury could not agree on the others. There was a second trial in September 2020 before a judge sitting alone. Loukas-Karlsson J acquitted Mr Stark on the remaining five charges.

Both the appellant and respondent are identified by pseudonyms: see Stark (a pseudonym) v Hillam (a pseudonym) [2022] ACTSC 101 at [1].

Grounds of appeal

The appeal is brought pursuant to s 93 of the FV Act. Such an appeal is an appeal by way of rehearing. The grounds of appeal in the Amended Notice of Appeal are as follows:

1.It was an error of law to find that the tests for making an award of costs as set out in section 73 of the Family Violence Act 2016 were met.
2.It was…

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 272
Decision Date

CaseChat Overview and Summary

The appellant, Mr Stark, appealed against an order made by the Magistrate in the ACT Magistrates Court under the Family Violence Act 2016 (ACT) (FV Act). The appeal was brought pursuant to s 93 of the FV Act. The appeal was by way of a rehearing and was heard by Mossop J. The grounds of appeal were that the magistrate was in actual or apprehended bias and that there was an error of law in relation to the making of costs orders. The appeal was dismissed. The only ground of appeal that was pressed was the issue of bias. The appeal against bias had three elements. The first was that the magistrate should have decided both applications at the same time. The second was that the magistrate had not given the appellant’s counsel adequate notice of his intention to award costs against the appellant. The third was that the magistrate had made enquiries of the registry without any prior notice to the parties. The court found that there was no basis for saying that the magistrate might not bring an impartial mind to the resolution of the case. The magistrate had decided Mr Stark’s application adversely to him but a reasonable lay observer would understand that the decision or his subsequent decisions in relation to Ms Hillam’s application or in relation to costs might be affected by matters other than the magistrate’s consideration of the relevant facts and the relevant law.

Orders