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
[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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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
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Background
Background to the litigation
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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.