Gj(Appellant) v as

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Refshauge,Rangiah JJ,Walmsley AJ
• Judgment Date: 08 March 2017
• Docket Number: File Number: ACTCA 42 of 2014
• Date: 08 March 2017

[2017] ACTCA 7

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Refshauge, Rangiah JJ and Walmsley AJ

File Number: ACTCA 42 of 2014

GJ

(Appellant)

and

AS

(Respondent)

Representation:

Counsel

In person (Appellant)

Mr S Malcolmson (Respondent)

Cases Cited:

Adamson v Ede [2009] NSWCA 379

Ammann v Wegener (1972) 129 CLR 415

Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060 ; 12 BPR 98107

Board of Examiners v XY [2006] VSCA 190 ; 25 VAR 193

Booker v Gill (1899) 15 WN(NSW) 158

BRJ v Council of the New South Wales Bar Association (No 2) [2016] NSWSC 228

Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203

Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246

Cheney v Spooner (1929) 41 CLR 532

CIC Australia Ltd v Australian Capital Territory Planning and Land Authority (2013) 277 FLR 26

Commonwealth v Crothell Hospital Services (Aust) Ltd (1981) 36 ALR 567

Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) (No 2) [2017] ACTCA 1

Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police (No 2) [2017] ACTSC 10

Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81

Cristian v Botterill [2016] ACTSC 315

Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523

Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28 ; 214 CLR 318 at 329–30; [27]–[31], 368; [143]

Edwards v Stocks (No 2) [2009] TASSC 11 ; 17 Tas R 454 at 460–1; [12]

Electro Optic Systems Pty Ltd v New South Wales [2013] ACTSC 155

Etna v Arif [1999] VSCA 99 ; [1999] 2 VR 353

FAI Insurance Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552

Fernando v Medical Complaints Tribunal [2004] TASSC 130

Garnett v Bradley (1878) 3 App Cas 944

Giller v Procopets (No 2) [2009] VSCA 72 ; 24 VR 1

GJ v AS [2011] ACTSC 119

GJ v AS [2014] ACTSC 189

GJ v AS [2015] ACTSC 66

GJ v AS (No 3) [2015] ACTCA 31

Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975

Hoser v The Queen; Ex parte Attorney-General of Victoria [2003] VSCA 194

In re Mills' Estate (1886) 34 Ch D 24

Knight v F P Special Assets Ltd (1992) 174 CLR 178

Knight v Secretary of the Department of Justice (Re Costs) [2004] VSC 29

Lansen v Minister for the Environment and Heritage (No 3) [2008] FCA 1367 ; 162 LGERA 258

Latoudis v Casey (1990) 170 CLR 534

Levi v Australian Securities and Investments Commission (No 2) [2013] NSWSC 932

Lend Lease GPT (Rouse Hill) Pty Ltd v Hills Shire Council (No 2) [2011] NSWLEC 26

Lewis v Chief Executive of the Department of Justice and Community Safety [2014] ACTSC 196

London County Council v Churchwardens and Overseers of West Ham [1892] 2 QB 173

Malouf v Prince [2009] NSWCA 159

Martin v Wiggins [1984] Tas R 188

Metsikas v Quirk [2010] NSWSC 756

New South Wales Crime Commission v Police Integrity Commission (No 3) [2011] NSWSC 978

O'Connell v Nixon [2007] VSCA 131 ; 16 VR 440

Orr v Homes (1948) 76 CLR 632

Oshlack v Richmond River Council (1998) 193 CLR 72

Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105

Quach v Butt [2017] ACTCA 4

Re Application of the Chief Commissioner of Police (Vic) [2005] HCA 18 ; 214 ALR 422

Re Gonzalez-Davi and Legal Services Society of British Columbia (1991) 81 DLR (4th) 12

Re Kuek [2012] FCA 494 ; 291 ALR 43

Re Williams Bros Ltd (1929) 29 SR(NSW) 248

Ritchie v Styles (No 2) [2011] TASSC 60

Ritter v Godfrey [1920] 2 KB 47

R v Theophanous [2003] VSCA 78 ; 141 A Crim R 216

Scott v Secretary, Department of Social Security (No 7) [2000] FCA 1450

The Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209

The Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118

Tylors (Australia) Ltd v Macgroarty [1928] S R Qd 371

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481

Weaver v Law Society of New South Wales (1979) 142 CLR 201

Wentworth v Rogers [2003] NSWSC 944

Wentworth v Rogers (No 3) (1986) 6 NSWLR 642

Wright, Danci and Currie (1992) 77 A Crim R 67

Wyatt v Albert Shire Council [1987] 1 Qd R 486

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212

Legislation Cited:

Civil Proceedings Act 2011 (Qld), s 15

Civil Procedure Act 2005 (NSW), s 98

Court Procedures Act 2004 (ACT), ss 7, 7(1)(a), 7(1)(b), 134

Domestic Violence and Protections Orders Act 2008 (ACT), ss 97, 100

Federal Court of Australia Act 1976 (Cth), s 43

Judicature Act 1875 (UK), s 5

Judiciary Act 1903 (Cth), s 26

Justice and Community Safety Legislation Amendment Act 2005 (No 4) (ACT), s 1.137

Supreme Court Act 1933 (ACT), ss 23, 37E

Supreme Court Act 1921 (Qld), s 11

Supreme Court Act 1935 (SA), s 40

Supreme Court Act 1986 (Vic), s 24

Supreme Court Act 1935 (WA), s 37

Supreme Court Civil Procedure Act 1932 (Tas), s 12

Court Procedures Rules 2006 (ACT), rr 4(1), 5001, 5050, 5051, 5300, 1720, 1721, 5606, Ch 5, Pt 1, Pt 2.17, Pt 5.3, Pt 5.4, It 6, Table 5051, Dictionary to the Court Procedure Rules

Rules of the Supreme Court 1883 (UK)

Supreme Court Rules (NT), r 63.03

Explanatory Statement for the Domestic Violence and Protection Orders Bill 2008 (ACT), cl 118

Domestic Violence and Protection Orders Regulation 2009 (ACT), s 93

Texts Cited:

ACT Hansard, 7 August 2008

Professor Enid Campbell in Rules of Court — A Study of Rule-Marking Powers and Procedures (LawBook Company, 1985)

PRACTICE AND PROCEDURE — COSTS — Award of costs — power to award costs — purpose of a costs order — ordinary rule — new affidavit evidence sought to be relied upon — leave not grant to rely on new affidavit — discretionary entitlement to costs a matter of practice and procedure — jurisdiction to order costs under the Domestic Violence and Protection Orders Act — appellant to pay the respondent's costs — r 1721 of the Court Procedure Rules 2006 (ACT)

Decision:

The appellant pay the respondent's costs

THE COURT:

1 On 12 January 2010, the appellant, GJ, applied to the ACT Magistrates Court for a personal protection order under the Domestic Violence and Protections Orders Act 2008 (ACT). The application was ultimately opposed and, on 8 March 2012, in circumstances that excited some controversy, the Magistrates Court dismissed the application and ordered that GJ pay the costs of AS.

2 GJ then appealed to the Supreme Court against the orders made by the Magistrates Court. That appeal was heard in July and October 2013 and on 17 February 2014. On 11 August 2014, the appeal was dismissed: GJ v AS [2014] ACTSC 189.

3 GJ then appealed that decision to this Court which heard the appeal on 8 May 2015 and, on 3 August 2015, dismissed the appeal: GJ v AS (No 3) [2015] ACTCA 31.

4 The proposed order of the Court was ‘The appeal be dismissed with costs’, but when the order was announced and before it was entered in the records of the Court, Refshauge J, when delivering the judgment of the Court, permitted the parties to file submissions as to costs since GJ foreshadowed that she would seek a different order.

5 Ultimately, AS advised that, having regard to the dismissal of the appeal, he sought his costs but did not consider it necessary to make any further submissions.

6 GJ sought an extension of time within which to file her submissions and she filed submissions as to costs on 27 August 2015. She also filed an affidavit affirmed on the same date and to which we will refer further below.

7 AS sought an extension of time within which to file his submissions in reply and was allowed until 28 September 2015 to do so. He filed his submissions on 6 October 2015. GJ filed a response the next day.

8 Having considered this material, we are of the opinion that GJ, should pay the costs of AS for the following reasons.

Affidavit of the appellant

9 Leave was neither granted nor sought for the appellant to file the affidavit she did file with her additional submissions. As no leave was granted for the filing of the affidavit, it is inappropriate for that to have been done.

10 Ordinarily, further evidence is not admissible on appeal; indeed, it has been described as permitted by appellate courts ‘in the most exceptional circumstances’: University of Wollongong v Metwally(No 2) (1985) 59 ALJR 481 at 483.

11 When challenged by AS as to the filing of the affidavit, GJ submitted that ‘there is no rule that an affidavit is only to be filed with leave of the court or by order of the court’.

12 The hearing had been completed and no further evidence had been sought or allowed to be received on the appeal. The parties had had an opportunity to argue their respective case.

13 It is well-known that courts will not consider submissions filed after the hearing of an appeal unless leave has been granted. See Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258; Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 329–30; [27]–[31], 368; [143]; R v Theophanous [2003] VSCA 78; 141 A Crim R 216 at 286; [204].

14 This approach has also been held to apply to further affidavit material: Re Application of the Chief Commissioner of Police (Vic) [2005] HCA 18; 214 ALR 422 at 427; [22].

15 The question of additional or further evidence on an appeal is regarded as in a special category.

16 Thus, under r...