Tomlinson (a pseudonym) v Roberts (a pseudonym) - [2025] ACTSC 429

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Tomlinson (a pseudonym) v Roberts (a pseudonym)
Citation:	[2025] ACTSC 429
Hearing Date:	17 September 2025
Decision Date:	19 September 2025
Before:	Kelly AJ
Decision:	The application for leave to appeal out of time is refused.
Catchwords:	APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Leave to appeal – family violence order – application for leave to appeal out of time – application opposed – explanation for delay – solicitor’s error in calculating last day to file the notice of appeal – whether the applicant has any arguable grounds of appeal – whether it is in the interests of justice to grant the extension of time
Cases Cited:	Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49 Doyle v Gillespie [2010] ACTSC 21; 4 ACTLR 188 R v Meyboom [2012] ACTCA 2; 256 FLR 450
Parties:	Ryan Tomlinson (a pseudonym) ( Applicant) Taylor Roberts (a pseudonym) ( Respondent)
Representation:	Counsel C Hitchins ( Applicant) Self-represented ( Respondent)
Solicitors CODA Criminal Law ( Applicant) Self-represented ( Respondent)
File Number:	SCA 30 of 2025

KELLY AJ:

1․This is an application by Mr Ryan Tomlinson (a pseudonym) for leave to appeal out of time against an order made in the Magistrates Court on 22 July 2025. On that date, after a contested hearing, the Magistrate made a final family violence order against the applicant protecting the respondent to these proceedings and her two-year-old son for a period of two years.
2․In the Court below and on the hearing of this application, the respondent was self-represented. She told me this was due to financial considerations. The respondent opposed the application.
3․The applicant’s solicitor filed an affidavit affirmed on 22 August 2025, in which she explained that the delay was caused by an error she made in calculating the last day to file the notice of appeal. She thought that the last date to appeal was 22 August when in fact it was 19 August 2025. She had received instructions from the applicant on 13 August to appeal the order. She then obtained counsel's advice, which was received on 18 August 2025.
4․Ms Hitchins, who appeared for the applicant, referred me to a number of authorities which discussed the relevant principles to be applied in an application for leave to file a notice of appeal out of time. I have had particular regard to those authorities, including Doyle v Gillespie [2010] ACTSC 21; 4 ACTLR 188, R v Meyboom [2012] ACTCA 2; 256 FLR 450 and Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49.
5․I accept that the principles I must apply in considering this application are correctly summarised in the judgment of Concerned Citizens of Canberra Inc at [21]:
The principles may be summarised as follows:
1. Time limits are important and must, prima facie, be obeyed.
2. In order…

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

AGLC: Tomlinson (a pseudonym) v Roberts (a pseudonym) [2025] ACTSC 429
Case: [2025] ACTSC 429
Decision Date: 19 September 2025

CaseChat Overview and Summary

In Tomlinson v Roberts, the applicant sought leave to appeal out of time a family violence order made in the Magistrates’ Court of Victoria. The applicant was opposed by the respondent who argued that the application was both procedurally and substantively deficient. The primary issue before the court was whether the applicant had any arguable grounds of appeal and whether it was in the interests of justice to grant an extension of time. The applicant argued that the magistrate erred in making the family violence order, and that the delay in filing the notice of appeal was due to an error by their solicitor in calculating the last day to file. The court considered the principles governing applications for leave to appeal out of time and the need to balance the applicant’s right to appeal against the respondent’s right to finality. The court found that the applicant had not demonstrated any arguable grounds of appeal and that there were no exceptional circumstances to warrant an extension of time. The application for leave to appeal out of time was therefore refused.

Orders

Orders of the court

The application for leave to appeal out of time is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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