TN v Ii

[2023] ACTMC 50

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

TN v II

Citation: 

[2023] ACTMC 50

Hearing Dates: 

7 December 2023

Decision Date: 

14 December 2023

Before:

Special Magistrate Christensen

Decision: 

Application to revoke the interim personal order made by a Deputy Registrar refused.

Catchwords: 

PERSONAL VIOLENCE ORDER – JURISDICTION, PRACTICE AND PROCEDURE – interim personal protection order – power to appeal – power to review

Legislation Cited: 

Court Procedure Rules 2006 (ACT) rr 3803(c), 6256

Human Rights Act 2004 (ACT) s 21

Legislation Act 2001 (ACT) s 180

Personal Violence Act 2016 (ACT) ss 19, 22, 80A, 80B, 81- 85, Part 6

Cases Cited: 

Canham v The ACT Magistrates Court and Jabs [2014] ACTSC 14

Capital Property Projects Pty Ltd v AcnCT Planning & Land Authority [2008] ACTCA 9

Craig v South Australia [1995] HCA 58

DPP v Shirvanian 102 A Crim R 180

Dunstan v The Crown [2003] ACTCA 22

Foote v Coroner's Court of the ACT [2018] ACTSC 119

Groves (a pseudonym) v Everette (a pseudonym) [2023] ACTSC 27

Kench v Bailey [1926] HCA 5; 37 CLR 375

Lacey v Attorney‑General of Queensland [2011] HCA 10

Minister for Immigration and Border Protection v SVZFW [2018] HCA 30

Texts Cited:

Magistrate Court of the Australian Capital Territory, Practice Direction No 2 of 2018: Applications for interim orders and uncontested applications for final orders under the Family Violence Act 2016 and Personal Violence Act 2016, 13 April 2018

Explanatory Statement, Court Procedures Amendment Rules 2017 (No 2) (ACT)

Parties: 

TN (Applicant)

II (Respondent)

Representation: 

Counsel

Self-represented (Applicant)

S Baker-Goldsmith ( Respondent)

Solicitors

Self-represented ( Applicant)

Legal Aid ( Respondent)

File Number:

PPO 594 of 2023

SPECIAL MAGISTRATE CHRISTENSEN

REASONS FOR DECISION:

Introduction

1․By way of the application in proceeding filed 22 November 2023, the applicant seeks:

(a)that the interim personal violence order made by Deputy Registrar Marshall on 8 August 2023 against the respondent in favour of the applicant/protected person be revoked;

(b)that the applicant/protected person bears the respondent's costs in connection with this application; and

(c)any other orders that the court considers appropriate.

2․The grounds of the application are, firstly, that there is an appeal as of right from the decision of a Registrar on interim personal violence order applications.

3․The additional grounds for the purposes of the application assert, at least on an alternative basis, that the Registrar erred and the contended reasons for this are as set out in the application.

4․A preliminary issue arises as to whether this court has the jurisdiction to make the first order sought and the determination of this preliminary issue is the subject of this decision. The applicant, for the purposes of this application, contends that two issues are to be resolved in respect of this preliminary issue with it submitted that these are –

(a)The court's power to review an interim order, and

(b)The form of review of an interim order.

Background

5․The applicant in this proceeding is the respondent in the substantive order. That is, II is the respondent to an interim personal protection order that was issued on 8 August 2023. For the purposes of this application, II will be referred to as the applicant in this decision.

6․The respondent in the current application is the applicant in the substantive order and for ease of understanding, if necessary, TN will be referred to as the protected person for the purposes of these reasons. TN is self-represented and understandably was not able to assist the court with the legal issues that arise in respect to the preliminary issues.

7․The order that is the subject of the current application is an interim personal protection order made by a Deputy Registrar on 8 August 2023 in accordance with s 19 of the Personal Violence Act 2016 (ACT) (Personal Violence Act). The order is a general interim order.

Ground 1 – Right of Appeal

8․In one sense, this application can be dealt with efficiently. That is, per the application in proceeding, the applicant has sought the revocation on the ground that there is an appeal as of right from a decision of the Registrar on interim personal violence order applications.

9․A revocation on such a ground must surely fail. That is because there is no appeal as of right to a Magistrate for such a decision.

10․It is well recognised that an appeal is a creature of statute: see Kench v Bailey [1926] HCA 5; 37 CLR 375 per Isaacs J; Lacey v Attorney‑General of Queensland [2011] HCA 10 at [56] (Lacey); and Minister for Immigration and Border Protection v SVZFW [2018] HCA 30 at [29] per then Gageler J. An appeal is neither an inherent nor natural right and it is not a power provided by common law. Further, it does not fall within the ambit of the restricted powers that are available to the Magistrates Court, such a court been an inferior statutory court.

Submission – ‘Review’

11․That conclusion does not though dispose of the application as a submission is made that the basis upon which this court can revoke the order is by undertaking a review. This submission was partially made with reference to pt 6 of the Personal Violence Act which provides for a review of orders.

Part 6 of the Personal Violence Act 2016 (ACT)

12․The reviews that this part permits relate to –

(a)Respondents to special interim orders: ss 80A and 80B;

(b)Protected persons, respondents, and someone else with sufficient interest in the original order, where it is a final order with the term ‘final order’ defined under the Personal Violence Act to mean a protection order that is not an interim order and includes an order amending a final order: ss 81, 82, and 83; and

(c)A party to a consent order: s 83.

13․It is readily apparent that part 6 of the Personal Violence Act provides no express power for a Magistrates Court to undertake a review in respect to the issuing of a general interim personal protection order.

14․Contrary to the submission of the applicant, it is not a power that is readily capable of being read into the Personal Violence Act. Rather, the legislature has seemingly deliberately provided certain powers of review in respect to particular orders and in respect to parties. This express power does not extend to either party in respect to a general interim order.

Section 22

15․The applicant submits that the court is able to infer from the inclusion in s 22(b) – that a general interim order ends if the interim order is revoked – that the court has a power to revoke or, as defined, cancel the general interim order that exists here. It is submitted that this inclusion for the power of the court to revoke such an order must, when reading the Personal Violence Act as a whole, which otherwise does not provide an express power in respect to revocation of general interim orders must mean there is a legislative intent for the court to have such a power in respect to the form of order here.

16․However, the Personal Violence Act, when read as a whole, does otherwise provide an express power for the revocation of specified interim orders. This is because an interim order is defined to mean (a) a general interim order which is defined to mean an order under s 19, being both a general or special order, or (b) a special interim order. As already observed, s 80B provides for a review of the special interim order with the powers of the court including revocation. Accordingly, while s 22 is concerned with all forms of interim orders, having regard to the definition of general interim orders and the meaning in s 19, s 22(b) is to be read as meaning a special interim order with reference to the powers provided in respect to that form of order in pt 6 of the Act. Section 22(b) does not without more provide the court with the power to revoke an interim order that is not a special interim order. The apparently deliberate distinction in the terms of the section is informative, if not determinative, as to the meaning of s 22 and the particular subsections.

Practice Direction No 2 of 2018

17․The applicant otherwise submits that the court's power to review the order here is available pursuant to Practice Direction No 2 of 2018 of the ACT Magistrate Court (Practice Direction) which provides at [3] –

The Court Procedures Rules 2006 allow the Registrar, and any Deputy Registrar authorised by the Chief Magistrate, to exercise the power of the Court to make interim protection orders and uncontested final orders under the Family Violence Act 2016 and Personal Violence Act 2016, (see rule 6251).

When an application for an interim order or an uncontested application for a final order is refused by the Registrar (or authorised Deputy Registrar), the applicant will be entitled to renew their application before a Magistrate. It is anticipated that a renewed application will be heard by a Magistrate on the same day as the original application, wherever possible.

The Registrar and any authorised Deputy Registrar are required to advise an applicant where an application is refused of his or her entitlement to renew the application before a Magistrate and to facilitate any such further application if that is requested.

18․It is abundantly clear from the terms of the Practice Direction that it is providing for a limited practice in which an application for certain orders can renew an application before a Magistrate. It provides no further authority or power to a Magistrate to renew or review an interim order or an uncontested final order application and it certainly does not provide for this to occur where the person seeking to renew the application is the respondent to the application.

19․As the applicant submitted, a decision by a Registrar is subject to appeal in accordance with r 6256 of the Court Procedure Rules 2006 (ACT) (Court Procedure Rules). This rule sets out the procedure of an appeal to a Magistrate in the form of a re-hearing in accordance with the rules. However, again as submitted by the applicant, r 3803(c) dis-applies r 6256 from application to a personal violence proceeding. The 2017 Explanatory Statement as to the insertion of this rule provided that:

In order to ensure family violence and personal violence proceeding processes are as simple, quick, and inexpensive as possible, appeals from registrar's orders are immediately referred to a magistrate. A practice direction will outline the procedure for the immediate review to a magistrate from a registrar's order in family and personal violence proceedings.

20․The Practice Direction that outlines this procedure is as set out above. The practice provided is consistent with the process adopted in respect to applications for interim orders which are, as submitted by an applicant typically ex-parte and not capable of immediate review by a respondent to the order, and, as set out above, the Practice Direction does not permit the scope of immediate review or renewal that the applicant seeks here.

21․The applicant accepts this construction and meaning of the Personal Violence Act in the Practice Direction but submits that the inability of the respondent to have an interim order reviewed is inconsistent with the achievement of justice and it is contrary to a right to a fair trial as guaranteed by s 21 of the Human Rights Act 2004 (ACT). It is submitted that abrogation of a right to appeal could only be by way of an express statutory intention and that there is an absence of such express statutory intention here. It is submitted that the absence of the review right appears much more likely to have been a matter of oversight rather than intention. I do not accept that submission.

Consideration

22․The obiter dicta in the decision of Groves (a pseudonym) v Everette (a pseudonym) [2023] ACTSC 27 at [31] (Groves v Everett), that the Practice Direction indicates that appeals from interim decisions of registrars lie to a magistrate does not assist the applicant. Firstly, that decision is concerned with an applicant for a temporary extension of a final family violence order not a respondent. Secondly, the Practice Direction is not providing an avenue of appeal but rather a practice by which there can be a renewal of an application by an applicant. Thirdly, to the extent that Groves v Everette is to be applied to the decision to be made here, it only confirms the view that a court cannot act without jurisdiction or powers to exercise that jurisdiction. While it might be said that the Magistrates Court has jurisdiction as to matters the subject of the Personal Violence Act, the Act does not provide, either expressly or impliedly, the power that the applicant seeks the court exercise within that jurisdiction.

23․The misconceived nature of the applicant's position is also able to be ascertained by the notion that the nature and extent of an appeal is to be found in the provisions by which they are established: see Foote v Coroner's Court of the ACT [2018] ACTSC 119 at [25] citing Capital Property Projects Pty Ltd v ACT Planning & Land Authority [2008] ACTCA 9; see also Lacey at [56].

24․The lack of confidence of the applicant in the form of the contested review, that is that the Practice Direction appears to grant a hearing de novo or in the alternative that it is in the nature of a re-hearing, is, in itself, telling as to the lack of power for this court to undertake any form of review and certainly not one in the nature of an appeal.

25․As then McWilliam AJ said in Foote at [26]:

Where there is a different statutory process but no express right of appeal created, a court cannot simply infer that the process should be treated as an appeal of a particular nature.

26․In Lacey, the majority said:

The precise nature of appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory context.

27․The difficulty in ascertaining the nature of what exercise it is sought this court undertakes only confirms to my mind the conclusion that this court has no power to undertake what is sought.

28․The applicant's submission that s 180 of the Legislation Act 2001 (ACT) provides a generalised power of the magistrate to either re-make or otherwise vary an order of the Registrar is also without merit. Section 180 is a non-determinative provision and therefore can be displaced either expressly or by a contrary intention. Even if s 180 is to be read as relating to the circumstances here and the power of the Magistrates Court and not the power of a Registrar which I expect is unlikely (see Dunstan v The Crown [2003] ACTCA 22), there is an apparent contrary intention by the Act that appeals and reviews are permitted in only specified circumstances.

29․Otherwise, the submission to the effect that the legislature must have intended a power for the Magistrates Court to review a decision of a Registrar is an attractive one. This submission, as I understand it, is premised on the limited forms of decisions which are an appellable decision that may be the subject of an appeal to the Supreme Court: ss 84 and 85. Plainly, the form of order here does not fall within an appellable decision and accordingly it is submitted that a determination that there is an inability for a Magistrate to undertake a review or for the Supreme Court to exercise appellate jurisdiction under the Act is contrary to the courts serving the interests of justice of the applicant.

30․Whether there is another form of remedy or relief available to the applicant or not is not though determinative of the court's jurisdiction and the powers available in the exercise of jurisdiction. Any rights of the applicant or any interests of justice are only exercisable by a court before a court which has the power to consider the contended rights and interests.

Conclusion

31․In essence, the applicant seeks that this court act upon a contended implied power to undertake a review of a registrar's decision to issue an interim personal protection order. While it is apparent that this court has the power to prevent an abuse of the court's processes in certain circumstances (see Canham v The ACT Magistrates Court & Gary Jabs [2014] ACTSC 14; and, for example DPP v Shirvanian 102 A Crim R 180), to conclude that this extends to an implied power to undertake a form of appeal, a renewal of application or a review of decision of the Registrar's decision under the Act in respect to a general interim order would amount to jurisdictional error: Craig v South Australia [1995] HCA 58 at [11] and [12]. Any implied power of this court in exercising the jurisdiction provided by the Personal Violence Act does not extend to a power to undertake the review, nor to make the order sought.

32․In respect to the preliminary issues raised, it is concluded that the court does not have within its jurisdiction the power sought and accordingly it is unnecessary for the court to decide the form of review.

Order

33․The application is dismissed.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of a revision from a transcript of the oral reason for decision of her Honour Special Magistrate Christensen.

Associate: Susie Kim

Date: 12 January 2024