X v Y
[2022] ACTSC 78
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | X v Y |
Citation: | [2022] ACTSC 78 |
Hearing Date(s): | 19 April 2022 |
DecisionDate: | 19 April 2022 |
Before: | Elkaim J |
Decision: | See [16] |
Catchwords: | APPEAL – MAGISTRATES COURT APPEAL – Application to dismiss appeal for want of prosecution |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5191 Personal Violence Act 2016 (ACT) s 11 |
Parties: | Mr X (a pseudonym) ( Appellant) Ms Y (a pseudonym) ( Respondent) |
Representation: | Counsel T Jackson ( Respondent) |
| Solicitors Legal Aid ACT ( Respondent) | |
File Number(s): | SCA 42 of 2021 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Campbell Date of Decision: 26 August 2021 Court File Number(s): DVO 166/2019 |
Elkaim J
The applicant, Ms Y (a pseudonym) is the respondent to an appeal from the Magistrates Court. The appellant is Mr X (a pseudonym).
Ms Y filed an application in proceeding on 13 April 2022, requesting that the appeal be dismissed for want of prosecution.
The application is supported by an affidavit of Mr Ewan Small, affirmed on 12 April 2021.
The notice of appeal is dated 22 December 2021. When filed Mr X was represented by Bevan & Co Lawyers. This firm has since ceased to act as the solicitor for Mr X. Notice of ceasing to act was served on Legal Aid ACT, which acts for Ms Y on 25 January 2022.
Based on the notice of appeal, the appeal is from an order made on 26 August 2021 by Magistrate Campbell. The order is an Extended Family Violence Order which continues an earlier order, made on 14 August 2019 which had imposed a number of prohibitions upon the Mr X in respect of Ms Y and a number of children.
In short compass the order made on 14 August 2019 prohibits Mr X from being near or in contact with Ms Y and the named children until 13 December 2031, when the youngest of the children will be 18 years old.
The grounds of the appeal allege a denial of procedural fairness, the occasioning of undue hardship by reason of the restrictions placed upon Mr X and “improper consideration of section 11 matters”. Section 11 presumably refers to the Personal Violence Act 2016 (ACT).
Mr Small’s affidavit sets out a chronology of events since 25 January 2022. There was a return date for the appeal on 10 February 2022. Mr X did not attend, causing the proceedings to be adjourned to 3 March 2022.
On 22 February 2022 Legal Aid ACT sent an email to Mr X telling him that Legal Aid ACT was now acting for Ms Y. There was no response to this email.
Mr X did not attend the adjourned listing date on 3 March 2022. Once again the proceedings were adjourned, this time to 19 April 2022.
A draft appeal index, as required by the rules, has not been served on Ms Y or on Legal Aid ACT.
Rule 5191(3)(a) of the Court Procedures Rules 2006 (ACT) says that the Supreme Court may “order that the appeal be dismissed for want of prosecution and confirm the order appealed from”.
The application in proceeding was served on Mr X on 13 April 2022 at his normal email address. He did not respond. He has also not attended court today having being called outside court.
In addition, the court file indicates the Registrar wrote to Mr X on at least two occasions. Again, there has been no response.
I am satisfied that the facts reveal that the appeal is not being prosecuted with due or any diligence and that the rule is applicable.
Accordingly, I make the following orders
(a)1. Appeal dated 22 December 2021 is dismissed for want of prosecution.
(b)2. Orders made by Magistrate Campbell on 26 August 2021 are confirmed.
(c)3. Mr X is to pay Ms Y’s costs of the appeal and of this application.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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