GJ v as

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Penfold J
• Judgment Date: 11 August 2014
• Date: 11 August 2014
• Docket Number: File Numbers: SCA 22 of 2012

[2014] ACTSC 189

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Penfold J

File Numbers: SCA 22 of 2012

GJ

(Appellant)

and

AS

(Respondent)

Representation:

Counsel:

In person (Appellant)

SM (Respondent)

Cases Cited:

Allesch v Maunz (2000) 203 CLR 172

CDJ v VAJ (1998) 197 CLR 172

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Fox v Percy (2003) 214 CLR 118

Gallo v Dawson (1990) 64 ALJR 458

GJ v AS [2011] ACTSC 119

GJ v AB (Magistrate Cush, 29 April 2010, unpublished)

Grassby v The Queen (1989) 168 CLR 1

House v The King (1936) 55 CLR 499

Lacey v Attorney-General of Queensland (2011) 242 CLR 573

Lane v Lane [2011] ACTSC 53 (unpublished)

Latoudis v Casey (1990) 170 CLR 534

Stollznow v Calvert [1980] 2 NSWLR 749

Legislation Cited:

Domestic Violence and Protection Orders Act 2008 (ACT), ss 14, 33, 36, 46(1)(b), 55, 56, 96, 99, 100, 117, 117(1)(b), 117(4), 118, 118(2)(f), 118(2)(n)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 20

Court Procedures Rules 2006 (ACT), rr 4(1), 1110(2), 1110(4),1163, 6251, 5052, 5115, 5115(1), 5115(1)(a), 5115(1)(b)

Domestic Violence and Protection Orders Regulations (2009) ACT, regs 48, 48(1), 69, 70, 93

Explanatory Statement, Domestic Violence and Protection Orders Bill 2008 (ACT)

Explanatory Statement, Protection Orders Bill 2001 (ACT)

Texts Cited:

Macquarie Dictionary Online, www.macquariedictionary.com.au, viewed 17 July 2014

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — Interference with Discretion of Court Below — Admission of Fresh Evidence — appeal from decision of Magistrates Court refusing personal protection order an appeal by way of rehearing — fresh evidence to be admitted on special grounds.

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — In General and Right of Appeal — appealable decision under relevant legislation only against making, amending or revoking or refusal to make, amend or revoke protection order — appeal against dismissal of application for protection order for lack of prosecution — dismissal for lack of prosecution to be treated as discontinuance before final decision made — dismissal for lack of prosecution not an appealeable decision — costs order made in conjunction with dismissal for lack of prosecution not appealable decision — costs order beyond power.

Introduction

1 This is an appeal against a decision made in the Magistrates Court on 8 March 2012. The decision was:

The Application for a Personal Protection Order is dismissed. It is ordered that the Applicant pay the Respondent's costs as assessed or agreed.

Background

2 In 2005, GJ, who has legal qualifications and has practised as a solicitor, was indirectly involved in a criminal case in New South Wales. Partly as a result of her involvement, certain convictions were overturned and several accused had to be retried. There was some public criticism of the processes that had led to the need for new trials, although it seems that GJ had at all relevant times acted properly and in accordance with her duty as an officer of the court.

3 AS hosted a website on which a substantial quantity of such criticism was published, including much that was intemperate, unpleasant, vulgar, offensive and arguably threatening. In a decision of the Magistrates Court in 2010 (see [20] below), the material was described as ‘offensive, boring, childish and moronic’.

4 GJ has taken various legal steps in response to the material on this website. This particular matter began with an application for a personal protection order ( PPO) that she made in the ACT Magistrates Court in early 2010, after discovering the material on AS's website.

5 PPOs are available under the Domestic Violence and Protection Orders Act 2008 (ACT) (the DVPO Act). Domestic violence orders are also available under that Act, between people who have been involved in domestic relationships, but there are various differences in the criteria for and circumstances in which the two kinds of orders may be made, and different provisions about the orders themselves.

6 An interim PPO may be made ex parte (s 33).

7 The criteria for the issue of a final PPO are set out in s 46 of the Act. That section, as in force at 13 January 2010, is as follows:

46 Grounds for making final orders (other than workplace orders)

• (1) The Magistrates Court may, on application, make a final order (other than a workplace order) if satisfied that —

  • (a) the respondent has engaged in domestic violence; or

  • (b) the respondent —

    • (i) has engaged in personal violence towards the aggrieved person; and

    • (ii) may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.

• (2) If an interim order has been made on the application and the respondent has objected to the interim order, in making the final order the Magistrates Court must consider the respondent's objection.

  Note This section does not apply to consent orders (see s 43 (2) (b)).

8 ‘Personal violence’ is defined in s 14, as in force at 13 January 2010, as follows:

14 What is personal violence?

• (1) For this Act (other than for division 6.2), a person's conduct is personal violence if the person —

  • (a) causes personal injury to someone (the aggrieved person) or damage to the aggrieved person's property; or

  • (b) threatens to cause personal injury to the aggrieved person or damage to the aggrieved person's property; or

  • (c) is harassing or offensive to the aggrieved person.

    Note Personal violence, for a workplace — see s 50.

• (2) However, a person's conduct is not personal violence if it is domestic violence.

9 GJ has represented herself throughout the current proceedings. AS has been represented on a number of occasions but at other times has represented himself. This seems to have reflected a need to minimise his costs of the matter. Although AS is based in Sydney, his legal representatives are based in Brisbane.

10 From the very beginning it seems that there have been issues between the parties about arrangements for service, with both parties creating difficulties.

11 GJ has a post office box in the ACT, and an email address, but it seems she does not check either the post office box or her email address regularly, and since she seems to have no home computer, she also has more than the usual obstacles to printing material sent by email. AS has from time to time had an address for service in the ACT, but this has also caused problems – for instance, GJ at one point took exception to the fact that a new ACT address for service provided by AS was only 100 metres away from where one of her daughters lived. One of the solicitors who has represented AS claims not to have an email address although, unlike GJ, he has a fax machine.

12 Neither party has shown any enthusiasm for the use of registered or other forms of tracked postage, because of the extra costs of those arrangements.

13 Each party has thus had difficulties in being sure whether material has been received by the other party (or, in relation to AS, by the appropriate member of the group consisting of AS and his occasional legal advisers).

The first Magistrates Court proceedings

Interim PPO

14 GJ applied for a PPO against AS. On 13 January 2010, an interim PPO was made and the matter was adjourned to 3 March 2010.

15 Section 36 of the DVPO Act as in force at all relevant times was as follows:

36 When interim orders become final orders

• (1) This section applies if the Magistrates Court makes an interim order in the absence of a respondent.

  Note For service of an interim order, see s 64.

• (2) If the respondent does not wish to object to the interim order becoming a final order, the respondent may —

  • (a) fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and

  • (b) indicate on the endorsement copy that the respondent does not object to the interim order becoming a final order; and

  • (c) return it to the Magistrates Court before the return date for the application for the final order.

• (3) If the respondent acts under subsection (2), the interim order becomes a final order on the day the Magistrates Court receives the endorsement copy.

• (4) If the respondent wishes to object to the interim order becoming a final order, the respondent must —

  • (a) fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and

  • (b) indicate on the endorsement copy that the respondent objects to the interim order becoming a final order; and

  • (c) return it to the Magistrates Court at least 7 days before the return date for the application for the final order to which the interim order relates.

• (5) If the respondent acts under subsection (4), the Magistrates Court may decide the application.

• (6) If the respondent wishes to object to the interim order becoming a final order but does not act under subsection (4), the Magistrates Court may decide the application for the final order only if the respondent —

  • (a) attends the Magistrates Court on the return date for the application for the final order; and

  • (b) objects to the interim order becoming a final order; and

  • (c) satisfies the court that the respondent —

  • (iii) has a legal disability and did not have a litigation guardian appointed for the proceeding at any time before the endorsement copy was required to be returned under subsection (4) (c); or

  • (iv) has a reasonable excuse for failing to act under subsection (4).

  • (v) Examples — par (c) (ii)

  • 1 the respondent was injured in a car accident and unable to return the endorsement copy in the time...