TAH v The Public Advocate

Case [2024] WADC 71


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   TAH -v- THE PUBLIC ADVOCATE [2024] WADC 71

CORAM:   GETHING DCJ

HEARD:   23 JULY 2024

DELIVERED          :   30 AUGUST 2024

FILE NO/S:   APP 13 of 2024

BETWEEN:   TAH

Appellant

AND

THE PUBLIC ADVOCATE

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE SCUTT

File Number            :   MC/CIV/PER/RO/4975/2023


Catchwords:

Appeal from Magistrates Court - Restraining Orders Act 1997 - Appellate jurisdiction of the District Court when a conduct agreement order is made - Whether exceptional circumstances exist to warrant the grant of leave to adduce additional evidence

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(4)(b), s 40(5)
Restraining Orders Act 1997 (WA), s 10H, s 64

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : In person
Respondent : Ms C J Hannah

Solicitors:

Appellant : Not applicable
Respondent : CJH Legal

Case(s) referred to in decision(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158

Australian Securities and Investments Commission v Kobelt [2019] HCA 18

Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130

Chang v Legal Profession Complaints Committee (No 2) [2020] WASCA 208; (2020) 56 WAR 263

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Connor v Veitch [2023] WASCA 186

G v O [2022] WASCA 23

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

Grossetti v Grossetti [2011] WADC 78

House v The King (1936) 55 CLR 499

JC v TH [2024] WADC 58

Jones v Darkan Hotel [2014] WASCA 133

Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12

Marks v Coles Supermarkets [2021] WASCA 176

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Modern Holdings Pty Ltd v Scentre Management Ltd [2022] WASC 19

Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65

Naidoo v Naidoo [2005] WADC 41

Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148

Nobarani v Mariconte [2018] HCA 36

Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164

Nugawela v American Express Australia Ltd [2016] WADC 170

Ogbonna v CTI Logistics Ltd [2021] WASCA 21

Ogbonna v CTI Logistics Ltd [2021] WASCA 22

Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77

Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148

Reynolds v Rayney [2023] WASCA 144

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550

Saunders v The Public Trustee [2015] WASCA 203

Scolio Pty Ltd v Cote (1996) 6 WAR…

Continue reading TAH v The Public Advocate

Sign in free to access the full text

Details
AGLC
TAH v The Public Advocate [2024] WADC 71
Case
[2024] WADC 71
Decision Date

CaseChat Overview and Summary

The case of TAH v The Public Advocate involves an appeal against a decision made by the Magistrates Court in relation to a Conduct Agreement Order under the Restraining Orders Act 1997. The District Court was tasked with determining whether the Appellant should be granted leave to adduce additional evidence in the appeal against the order. The primary focus of the appeal was to ascertain whether exceptional circumstances existed to warrant the admission of new evidence that could potentially alter the outcome of the case.

The legal issues before the court encompassed the assessment of whether the Appellant's proposed additional evidence could be admitted under the Magistrates Court (Civil Proceedings) Act, and if so, whether these circumstances were indeed exceptional. The court had to consider whether the Appellant had demonstrated a justifiable reason for not presenting the evidence at the initial hearing, and if the evidence could reasonably have been discovered prior to the original hearing. Furthermore, the court needed to determine whether the admission of this new evidence would have led to a different outcome.

In its reasoning, the court emphasised the heavy onus on the Appellant to justify the admission of new evidence on appeal, highlighting that such evidence should not be used to rectify perceived weaknesses in the original case. The court concluded that the Appellant had not demonstrated exceptional circumstances warranting the admission of additional evidence, as the evidence presented did not reveal any new facts that could have altered the Magistrate's decision. The court found that the Appellant had not provided a satisfactory explanation for the failure to present this evidence at the initial hearing, and it was not convinced that the evidence would have led to a different outcome.

The District Court upheld the original decision of the Magistrates Court, denying the Appellant's request for leave to adduce additional evidence. The court's decision was based on the lack of exceptional circumstances and the Appellant's inability to justify the late presentation of the evidence. As a result, the Conduct Agreement Order remained in place, and the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Should the Appellant be granted leave to adduce the Additional Evidence? The analysis to date is that on the basis of the materials before the Magistrate, and what transpired at the hearing on 8 February 2024, the Magistrate did not err, with the consequence that there is no basis to set aside the Conduct Agreement Order. In this context, I need to consider whether exceptional circumstances exist to warrant granting leave to adduce the Additional Evidence.[90][90] MCCPA s 40(4)(b), s 40(5). In Shilkin v Taylor Newnes JA observed of this discretion:[91]It is evident that so far as the material in that affidavit is sought by the appellant to be admitted on the appeal, it is in the nature of new evidence, rather than fresh evidence; that is, it is evidence which, with the exercise of reasonable diligence, could have been discovered by the appellant prior to the hearing before the magistrate of the application to set aside the default judgment.A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance. Where the evidence was deliberately withheld, that will be a factor which weighs heavily against the admission of the evidence on appeal … Even where that is not the case, ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial (or in this case, of a full trial): …On an appeal of the present kind, this court may give leave for additional evidence to be admitted only in exceptional circumstances: Magistrates Court (Civil Proceedings) Act, s 42(3)(c), s 42(4). It is not helpful to attempt to describe what would constitute 'exceptional circumstances' for the purpose of s 42(3)(c). The variety of circumstances that might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose. It is sufficient to say that in this case no exceptional circumstances have been made out.[91] Shilkin v Taylor [2011] WASCA 255 [66] - [68] (references omitted) (Newnes JA, with whom Pullin & Buss JJA agreed) (Shilkin). See also: Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [89] (Newnes JA, with whom Buss & Pullin JJA agreed); JC v TH [2024] WADC 58 [21] (Black DCJ); Nugawela v American Express Australia Ltd [2016] WADC 170 [16] (Bowden DCJ) (Nugawela). Moreover, leave to admit additional evidence should not be used to rectify perceived weaknesses in a case already presented.[92][92] Nugawela [20]; Naidoo v Naidoo [2005] WADC 41 [9] (Eaton DCJ). As mentioned ([60]), there are essentially three issues addressed in the Additional Evidence. The first issue is the Appellant's state of mind when the Conduct Agreement Order was made (par 15). I have already addressed this issue to the extent that what the Appellant describes is apparent from the transcript of the hearing before the Magistrate ([98]). This aspect of the Additional Evidence is evidence of the Appellant’s state of mind that was not apparent from the transcript of the hearing before the Magistrate.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.