Brian Charles Lane v Svetlana Lane and Anor

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 30 March 2011
• Date: 30 March 2011
• Docket Number: No. SCA 41 of 2007

[2011] ACTSC 53

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCA 41 of 2007

Brian Charles Lane

Appellant

and

Svetlana Lane and Anor

Respondents

Counsel for the appellant: Mr S Whybrow

Counsel for the respondents: Mr Ken Archer

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

Fox v Percy (2003) 214 CLR 118

Pledge v Roads and Traffic Authority (2004) 78 ALJR 572

CSR Ltd v Della Maddalena (2006) 80 ALJR 458

Warren v Coombes (1979) 142 CLR 531

Jones v Hyde (1989) 63 ALJR 349

Abalos v Australian Postal Commission (1990) 171 CLR 167

Devries v Australian National Railways Commission (1993) 177 CLR 472

Briginshaw v Briginshaw (1938) 60 CLR 336

SI bhnf CC v KS bhnf IS (2005) 195 FLR 151

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

Perkins v County Court of Victoria (2000) 2 VR 246

Pettitt v Dunkley [1971] 1 NSWLR 376

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Mifsud v Campbell (1991) 21 NSWLR 725

Stoker v Adecco Gemvale Constructions Pty Ltd and Anor [2004] NSWCA 449

Acuthan v Coates (1986) 6 NSWLR 472

Tez v Longley (2004) 142 A Crim R 122

Winwood v Burk [2002] TASSC 54

Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435

Alice Springs Town Council v Mpweteyerre Aboriginal Corporation and Ors (1997) 139 FLR 236

Family Law Act 1975 (Cth)

Crimes Act 1914 (Cth), s 75(b)

Domestic Violence and Protection Orders Act 2001 (ACT), ss 5, 6, 9, 40, 41, 58, 59, 78, 79

Crimes Act 1900 (ACT)

Magistrates Court Act 1930 (ACT), pt X

Domestic Violence Act 1986 (ACT)

Court Procedures Rules 2006 (ACT), r 5103

Australian Law Reform Commission (ALRC), Domestic Violence (ALRC: Sydney, 1986) Report No 30

Seddon N, Domestic Violence in Australia: The Legal Response (Federation Press: Sydney, 1993) 2 ^nd ed.

Naffin, N, Domestic Violence and the Law –a Study of s 99 of the Justices Act (South Australia) (Women's Adviser's Office, South Australia: Adelaide, 1985)

The Community Law Reform Committee of the ACT, Domestic Violence — Civil Issues (ACT: Canberra, 1995) Report No 11

FAMILY LAW AND CHILD WELFARE — protection orders — domestic violence orders — whether need for evidence of likelihood of future domestic violence — evidentiary onus on respondent — difference between domestic violence orders and personal protection orders — Domestic Violence and Protection Orders Act 2001 (ACT) ss 5, 6, 40, 41.

APPEAL AND NEW TRIAL — appeal from Magistrate's Court — jurisdiction under Domestic Violence and Protection Orders Act 2001 (ACT) — nature of appeal — rehearing with power to admit further evidence.

ORDER

THE COURT ORDERS THAT:

• 1. The time within which the Appellant may file the notice of appeal is extended to 1 June 2007.

• 2. The appeal be dismissed.

1 In 2003, the appellant, Brian Charles Lane married the first respondent, Svetlana Lane, whom he had met over the internet when she lived in Russia and he in Canberra. They married in her home city of Volgograd on 3 May 2003.

2 There were difficulties in arranging a visa for Mrs Lane to come to Australia and it appears that Mr Lane sponsored her visa, but she arrived in mid-December 2005 and moved in to Mr Lane's home in Richardson.

3 It appears that there were stresses in the marriage, the perceptions of the nature and cause of which were described, perhaps unsurprisingly, in rather different ways by husband and wife.

4 On 24 August 2006, Mr Lane wrote a letter to the Department of Immigration and Multicultural Affairs withdrawing his sponsorship of Mrs Lane and her daughter, the second respondent, under which they had obtained their visas to enter Australia.

5 On 31 August 2006, Mrs Lane and her daughter both applied to the Magistrates Court for a Protection Order under the Domestic Violence and Protection Orders Act 2001 (ACT) ( Protection Orders Act). It appears that Interim Orders were made on 31 August 2006.

6 Ultimately, the applications came on for hearing on 26 and 27 February 2007. The Learned Magistrate reserved his decision. On 4 May 2007, orders were made restraining Mr Lane from engaging in behaviour that constitutes domestic violence in relation to Mrs Lane and her daughter with other associated conditions or orders.

7 On 1 June 2007, Mr Lane filed a notice of appeal against the orders.

Jurisdiction

8 This court has jurisdiction to hear and determine appeals from the Magistrates Court exercising jurisdiction under the Protection Orders Act under s 79 of the Act. That section requires that there be an appealable decision and that the person seeking to appeal files a notice of appeal, where, as here, the person was present when the order was made, within 21 days from the date of the order.

9 An appealable decision, described in s 78 of the Act, includes the making of a protection order.

10 The time limit prescribed for other civil appeals under r 5103 of the Court Procedures Rules 2006 (ACT) (the Rules), namely 28 days, is longer than that provided for in the Protection Orders Act. As noted above (at [8]), s 79(2) of the Act requires a notice of appeal to be filed within 21 days, but s 79(3) permits the court to allow a notice to be filed after the 21 days ‘if satisfied that it is appropriate to do so’.

11 Applying s 79 of the Protection Orders Act, Mr Lane's notice of appeal was filed outside the 21 day period; indeed, it was filed 27 days after the order was made, he no doubt thinking that it was within time. Had it been another civil appeal, it would have been within time.

12 Mr Lane applied for permission to file it out of time. Neither Mrs Lane nor her daughter opposed that and I will make an appropriate order.

13 Appeals instituted under the Protection Orders Act are regulated by that Act, which provides, relevantly:

• 81 In an appeal, the Supreme Court must consider the evidence given in the proceeding from which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.

• 82 On an appeal, the Supreme Court may —

  • (a) confirm, reverse or amend the decision or order appealed from; or

  • (b) make the decision or order that, in all the circumstances, it considers appropriate, or refuse to make an order; or

  • (c) set aside the decision or order appealed from, completely or partly, and remit the proceedings to the Magistrates Court for further hearing, subject to the directions the Supreme Court considers appropriate.

• 83. The filing of an appeal against the making or amending of an order under this Act does not affect the operation of the order appealed against.

14 Having regard to those provisions and the approach that this court has taken to appeals from decisions of the Magistrates Court, it seems to me that the appeal is an appeal by way of rehearing. I described such appeals in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 as follows (at [78]):

2. Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.

15 The obligation of appellate courts, especially where there are issues as to the credibility of witnesses is concerned, has been the subject of recent consideration by the High Court in cases such as Fox v Percy (2003) 214 CLR 118, Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 and, more recently, in CSR Ltd v Della Maddalena (2006) 80 ALJR 458.

16 In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ repeated (at 127; [25]) what had been said in Warren v Coombes (1979) 142 CLR 531, where the majority repeated (at 551) the rule that:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

17 Their Honours then referred to the ‘trilogy’ of cases which reiterated the need for appellable respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom, of course, the trial judge sees, but the appellate court does not. Those cases were Jones v Hyde (1989) 63 ALJR 349 (at 351–2); Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 179) and Devries v Australian National Railways Commission (1993) 177 CLR 472 (at 472, 482–3). Their Honours continued (at 127–8; [27] to [29]):

27. The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act...