SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | TS v DT |
Citation: | [2020] ACTCA 43 |
Hearing Date: | 4 August 2020 |
DecisionDate: | 27 August 2020 |
Before: | Elkaim, Mossop and Collier JJ |
Decision: | Appeal dismissed |
Catchwords: | APPEAL – FAMILY VIOLENCE – Appeal of Family Violence Order – Whether primary Judge attempted to cover up Magistrate’s alleged misconduct – whether primary Judge erred in finding no miscarriage of justice – improper application of Browne v Dunn principle – lack of consideration of personal circumstances EVIDENCE – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether Failure to Adduce Due to Mistake or Oversight – Self-represented litigant – relevance |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5606 |
Cases Cited: | Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 |
Texts Cited: | JD Heydon, Cross on Evidence (LexisNexis Butterworths, 12th ed, 2020) |
Parties: | TS (Appellant) DT (Respondent) |
Representation: | Counsel TS (Appellant) B Hamack (Respondent) |
| Solicitors In person (Appellant) Legal Aid ACT (Respondent) | |
File Number: | ACTCA 50 of 2019 |
Decision under appeal: | Court: ACT Supreme Court Before: Crowe AJ Date of Decision: 25 October 2019 Case Title: TS v DT Citation: [2019] ACTSC 295 |
ELKAIM J
I have had the benefit of reading in draft the judgment of Collier J. I have also read the additional comments of Mossop J. I agree with both the reasons and the order proposed by Collier J.
As to the comments made by Mossop J, on my reading of the judgment of Collier J, her Honour’s rejection of the respondent’s submissions in respect of ground 7, should be regarded as obiter dicta for the reason given by her Honour, namely that no Notice of Contention was filed by the respondent.
There is one other point that I would like to make. This is an appeal from an appeal. The appellant had a right to appeal from the decision of Crowe AJ, the primary Judge (s 37E of the Supreme Court Act 1933 (ACT)). He also had a right to appeal from the decision of the Chief Magistrate to the Supreme Court (s 93 of the Family Violence Act 2016 (ACT)). In my view his rights of appeal should have been restricted to the latter appeal, namely from the Magistrates Court to the Supreme Court. Any…
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- AGLC
- TS v DT [2020] ACTCA 43
- Case
- [2020] ACTCA 43
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CaseChat Overview and Summary
The central legal issues before the Full Court were whether the primary judge erred in finding that no miscarriage of justice had occurred, and whether the primary judge had improperly applied the *Browne v Dunn* principle. The applicant also sought to adduce further evidence on appeal, arguing that the failure to adduce this evidence at the original hearing was due to mistake or oversight, given she was a self-represented litigant at that time.
The Court found that the primary judge had not erred in their findings. The Court determined that the primary judge had adequately considered the applicant's personal circumstances and had not improperly applied the *Browne v Dunn* principle. Furthermore, the Court concluded that the applicant had not established a sufficient basis for admitting further evidence on appeal, as the failure to adduce it at the original hearing was not demonstrably due to mistake or oversight in a manner that would warrant appellate intervention.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed
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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