WCJ v VR - [2024] NTLC 5

CITATION:	WCJ v VR [2024] NTLC 5
PARTIES:	WCJ
v
VR
TITLE OF COURT:	LOCAL COURT
JURISDICTION:	PERSONAL VIOLENCE
FILE NO(s):	22335629
DELIVERED ON:	2 May 2024
DELIVERED AT:	DARWIN
HEARING DATE(s):	12 March 2024
JUDGMENT OF:	Judicial Registrar Gordon
CATCHWORDS:

Leave to admit evidence - Mediation confidentiality - Commissions of an offence - Public interest test - Leave refused
Personal Violence Orders Restraining Act 2016
Community Justice Act 2005, s34
Evidence (National Uniform Legislation) Act 2011, ss131(1), 131(2)(j)
Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1
Kadian v Richards [2004] NSWSC 382
X (a pseudonym) v Y (a pseudonym) [2022] WADC 85

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REPRESENTATION:

Counsel:

Applicant: Ms Grimster
Respondent: Ms Martin

Solicitors:

Worker: Piper Grimster Jones
Employer: Gabrielle Martin Legal

Judgment category classification:	B
Judgment ID number:	[2024] NTLC 5
Number of paragraphs:	49

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IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. 22335629

BETWEEN:
WCJ
Applicant
AND:
VR
Defendant

REASONS FOR DECISION

(Delivered 2 May 2024)

Reasons for Decision

1.   The substantive proceedings in this matter concern an application for a Personal Violence Restraining Order. On 13 February 2024 the Applicant sought leave to rely upon an Affidavit which contained evidence of a statement which was made during a mediation between the parties ordered pursuant to s14 of the Personal Violence Orders
Restraining Act 2016 (‘the PVRO Act’).
2.   Directions were made for the filing of submissions and oral argument was heard on 12 March 2024. On this date I declined to grant leave for the Applicant to rely on the without prejudice statements made at mediation and indicated that, given the unusual nature of the application, and to ensure the parties fully understood the reasons for the determination, written reasons would be available at a later date. These are those reasons.
3.    The PVRO Act requires at section 14 (subject to some limited exceptions), that the Court must refer parties to an application for a personal violence restraining order to the Community Justice Centre (CJC) for mediation. The parties in the current matter were so referred on 21 November 2023.
4.   The Community Justice Centre subsequently reported to the Court that the parties attended a mediation on 20 December 2023, but were unable to reach agreement. The parties returned to Court and the Applicant made an application for an Interim Personal Violence Restraining Order, based in part, on the events that occurred at the mediation.

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5. The Respondent opposed both leave to introduce the evidence of comments made at mediation and the Interim Personal Violence Restraining Order.
6. Prior to participating in the CJC mediation the parties are given an ‘Agreement to
Mediate’ form[1] by the CJC which sets out various ground rules for participation in the
mediation, including at items 7, 8 and 9 the following conditions:
“7. We understand that mediation is a confidential process and that the mediator
will not discuss the mediation with anyone outside of the CJC,…

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 WCJ v VR

Details

AGLC: WCJ v VR [2024] NTLC 5
Case: [2024] NTLC 5
Decision Date: 2 May 2024

CaseChat Overview and Summary

The case of WCJ v VR involved an application for a Personal Violence Restraining Order (PVRO) brought before the Local Court in Darwin, Northern Territory. The Applicant, WCJ, sought leave to rely on an affidavit containing a statement made during a mediation session ordered under section 14 of the Personal Violence Orders Restraining Act 2016. The mediation, which took place on 20 December 2023, was unsuccessful, and the Applicant subsequently applied for an Interim Personal Violence Restraining Order based partly on the events during mediation. The Respondent, VR, opposed both the leave to introduce the evidence and the interim order. The central legal issues revolved around whether the confidentiality of mediation statements under section 34 of the Community Justice Act 2005 could be breached to allow the introduction of such statements as evidence, and whether the public interest in maintaining confidentiality in mediations outweighed the need to prevent any potential abuse of the process.

The Court examined the interpretation of 'statement' under the Act, concluding that it included oral statements, thereby encompassing the confidentiality provisions of section 34. It rejected the Applicant's argument that oral statements should be excluded from the confidentiality afforded by the Act. The Court further considered whether the exception under section 131(2)(j) of the Evidence (National Uniform Legislation) Act 2011, which allows for the admission of evidence where communications were made in furtherance of a fraud, offence, or act liable to a civil penalty, applied. Despite the Applicant's submission that the Respondent’s comments during mediation could constitute stalking, the Court found insufficient evidence to support that the comments were made in furtherance of such an offence. Lastly, the Court evaluated the public interest in maintaining mediation confidentiality against the need to prevent abuse of the mediation process, concluding that the latter did not sufficiently outweigh the former in this instance.

Consequently, the Court refused the Applicant's application for leave to rely on the confidential mediation statements as evidence and also declined to grant the Interim Personal Violence Restraining Order. The matter was listed for a final hearing on 2 August 2024.

Orders