Veness v Hodge - [2015] NSWCA 20

Court of Appeal
Supreme Court

New South Wales

Case Name:	Veness v Hodge
Medium Neutral Citation:	[2015] NSWCA 20
Hearing Date(s):	12 December 2014
Date of Orders:	23 February 2015
Decision Date:	23 February 2015
Before:	Barrett JA at [1]; Emmett JA at [2]; Adamson J at [58]
Decision:	Summons filed on 2 July 2014 be dismissed with costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – whether the primary judge erred in construing and applying the Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 19, in making an apprehended personal violence order – whether the primary judge misconceived the object of the Act – whether the primary judge failed to provide adequate reasons
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), s 18 Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 7, 8, 10, 18, 19, 20, 35, 36, 84 Criminal Procedure Act 1986 (NSW) Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 Kirk v Industrial Court of NSW [2010] HCA 1; 239 CLR 531 Mahmoud v Sutherland [2012] NSWCA 306 PE v MU [2010] NSWDC 2 Robbins v Commissioner of Taxation (1974) 129 CLR 332 Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Category:	Principal judgment
Parties:	Suzanne Veness (Applicant) Judith Marguerite Hodge (First Respondent) District Court of NSW (Second Respondent)
Representation:	Counsel: M Robinson SC with P Glissan (Applicant) S Walsh (First Respondent) Submitting appearance (Second Respondent) Solicitors: Stacks Law Firm (Applicant) Blue Water Legal (First Respondent) Crown Solicitor’s Office (NSW) (Second Respondent)
File Number(s):	2014/195568
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court of NSW
Date of Decision:	2 April 2014
Before:	Ellis DCJ
File Number(s):	2013/193425

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

BARRETT JA: As the analysis made by Emmett JA shows, the judgment of Ellis DCJ, properly construed having regard to the material that was before his Honour, reflects endorsement of the conclusions reached by the learned magistrate and adoption of the magistrate’s reasons for those conclusions. Such an approach does not, of itself, bespeak jurisdictional error or other error of law. As was noted in Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 at [178], an example of unexceptionable adoption by an appellate court of reasons given by the judicial officer whose decision was subject to appeal may be found in the joint judgment in Robbins v Commissioner of Taxation (1974) 129 CLR 332. For the reasons given by Emmett JA, with which I agree, Ms Veness’s application for judicial review should…

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.

Continue reading Veness v Hodge

Details

AGLC: Veness v Hodge [2015] NSWCA 20
Case: [2015] NSWCA 20
Decision Date: 23 February 2015

CaseChat Overview and Summary

The appeal concerned an apprehended personal violence order made by a Local Court magistrate against Mr Hodge, which was later set aside by the primary judge. The applicant, Ms Veness, sought to appeal the primary judge's decision to the Court of Appeal.

The central legal issues before the Court of Appeal were whether the primary judge had erred in their construction and application of section 19 of the *Crimes (Domestic and Personal Violence) Act 2007* (NSW) when setting aside the apprehended personal violence order, whether the primary judge had misconceived the object of the Act, and whether the primary judge had failed to provide adequate reasons for their decision.

The Court of Appeal found that the primary judge had erred in their interpretation of section 19 of the Act. The Court held that the primary judge had misconstrued the legislative intent and the purpose of the Act, which is to provide protection from domestic and personal violence. The Court determined that the primary judge's reasons were insufficient to justify setting aside the apprehended personal violence order.

Consequently, the Court of Appeal ordered that the summons filed on 2 July 2014 be dismissed with costs.

Orders

Orders of the court

Summons filed on 2 July 2014 be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.