LE v SX

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Mossop AsJ
• Judgment Date: 11 May 2015
• Date: 11 May 2015
• Docket Number: File Number(s): SCA 1 of 2015

[2015] ACTSC 79

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop AsJ

File Number(s): SCA 1 of 2015

LE

(Applicant)

and

SX

(Respondent)

Representation:

Counsel:

Self-represented (Applicant)

Mr J Lawton (Respondent)

Cases Cited:

BL v SL and NM [2011] ACTSC 53

Briginshaw v Briginshaw (1938) 60 CLR 336

Dewson v Macdonald [2014] ACTCA 39

DPP (ACT) v Martin (2014) 286 FLR 120

Gallo v Dawson (1990) 93 ALR 479

GJ v AS [2014] ACTSC 189

Goreski v de Costa and AAMI [2014] ACTSC 233

House v The King (1936) 55 CLR 499

Lukatela v Birch (2008) 223 FLR 1

N v N (No 2) [2015] ACTSC 48

Teo Tran t/as Canberra Direct and as Canberra Mailing v Calvista Australia Pty Ltd [2010] ACTCA 5

Vilenius v Heinegar (1962) 36 ALJR 200

Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2014] ACTCA 32

Legislation Cited:

Domestic Violence and Protection Orders Act 2008 (ACT) ss 96–100

Family Law Act 1975 (Cth) s 69ZX(3)

Texts Cited:

Cross on Evidence, Australian Edition (Looseleaf) at [5125]

APPEAL — Application for extension of time in which to bring an appeal from the Magistrates Court — where explanation for the failure to lodge appeal within time does not fully explain the delay — where there is an arguable ground of appeal — where findings relied upon by Federal Circuit Court pursuant to s 69ZX(3) of the Family Law Act 1975 (Cth) — where prospects of obtaining a different result on appeal poor — application dismissed

Introduction

1 This is an application for an extension of time in which to bring an appeal from a decision of the Magistrates Court given on 27 May 2014 dismissing an application for a domestic violence order ( DVO).

Principles to be applied

2 Section 96 of the Domestic Violence and Protection Orders Act 2008 (ACT) ( the Act) identifies that the refusal of the Court to make a protection order is an appealable decision. Sections 97 and 99–100 of the Act provide:

97 When can someone appeal to Supreme Court?

• (1) A person may appeal to the Supreme Court against an appealable decision if the person was a party to the proceeding in which the decision was made.

• (2) The person must file a notice of appeal (the notice of appeal) with the Supreme Court not later than 21 days after—

  • (a) if the appealable decision was the making or amending of a protection order and the respondent was not present when the protection order was made or amended—the day the protection order or amendment is served on the respondent; or

  • (b) in any other case—the date of the order.

• (3) However, the Supreme Court may allow a person to file a notice of appeal after the period mentioned in subsection (2) if satisfied that it is appropriate to do so.

• …

99 Evidence on appeal

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.

100 Powers of Supreme Court on appeal

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.

3 Section 97(3) of the Act permits the Court to allow a person to file a notice of appeal outside the 21 day period provided for in s 97(2) if it considers that it would be ‘appropriate to do so’. In DPP (ACT) v Martin (2014) 286 FLR 120 at [159] the Full Court of the Supreme Court summarised the principles relating to the granting of an extension of time in circumstances where, as here, the statutory provision permitting extension does not impose particular conditions upon the grant of an extension of time. The Court summarised the approach to be taken as follows:

159. The governing principle is that legislative time limits are not to be ignored. Applications for extension of time will only be granted where it is proper to do so. It will be proper to do so only where it is fair and equitable in the circumstances. It is up to the applicant (here the Director) to persuade the Court that it would be fair and equitable to extend the time. In summary, the following non-exhaustive considerations, drawn from Jess v Scott and Hunter Valley v Cohen, bear upon the exercise of the discretion:

• (1) The length of the delay;

• (2) Whether there is an acceptable explanation for the delay;

• (3) Whether the case raises questions of general importance;

• (4) The extent of any prejudice to the defendant, including any prejudice in defending the proceedings that is caused by the delay, although absence of prejudice alone is not sufficient to justify a grant of an extension;

• (5) Whether the interests of third parties have been affected;

• (6) The wider public interest;

• (7) The merits of the substantive application.

160. It is important to bear in mind, however, as Burchett J put it in Pozniak v Minister for Health (1986) 9 ALN 256 at 256, that these considerations are ‘signposts to guide the court's discretion’, not ‘fences to limit the breadth of the field’.

4 While that summary of principles was in the context of an application to extend time in which to bring judicial review proceedings, in my view it is equally applicable in the present case in determining whether it is ‘appropriate’ to extend time.

5 Refshauge J summarised the approach to be taken to whether to grant leave to appeal out of time in similar terms in Dewson v Macdonald [2014] ACTCA 39 at [9]. One of the points made by his Honour was that ‘the application is to be determined by the court's view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.’ Although that was an application in relation to a criminal appeal, the summary set out and, in particular, the passage quoted, is equally relevant to the application in the present case.

6 In so far as it is relevant, for the purposes of the application for further time in which to file an appeal, to have regard to the merits of the substantive application, it is necessary to understand the nature of an appeal which could be brought from the decision of the Magistrates Court. The following propositions are relevant.

• (a) An appeal brought pursuant to s 97 of the Act is by way of rehearing: s 99–100; GJ v AS [2014] ACTSC 189 at [96]–[109].

• (b) The principles are applicable to a rehearing were summarised by Rares J in Lukatela v Birch (2008) 223 FLR 1 at [21]–[24] and I adopt that summary. In Goreski v de Costa and AAMI [2014] ACTSC 233 at [7] Murrell CJ said:

  The appellate court must conduct a ‘real review’, weighing conflicting evidence, and drawing its own inferences from the undisputed and established facts, but bearing in mind the advantages of the primary judge in relation to fact-finding (including a great advantage in assessing the credibility of witnesses): Warren v Coombs (1979) 142 CLR 531 at 551, Fox v Percy (2003) 214 CLR 118 at 127–128.

• (c) Because the decision to grant a protection order is a discretionary one, the principles in House v The King (1936) 55 CLR 499 at 504–505 may be applicable in an appeal to the extent that the decision below involves the exercise of discretion.

• (d) In relation to the potential admission of additional evidence on any appeal, the principles to be applied are set out in the Court of Appeal decision in Teo Tran t/as Canberra Direct and as Canberra Mailing v Calvista Australia Pty Ltd [2010] ACTCA 5 at [25]–[30] and Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2014] ACTCA 32 at [27]–[32].

The proceedings below

7 The proceedings were commenced on 25 February 2014 when the applicant, LE, applied for a DVO against her previous partner, SX. An interim order was made on that date. The application for a final order was heard on 27 May 2014. Mr N, a solicitor, appeared for LE and Mr Gill of counsel appeared for SX. The transcript of the proceedings extends over some 86 pages.

8 LE gave evidence-in-chief relating to a number of incidents, the details of which are as follows.

• (a) The first was the incident which occurred shortly prior to the application for an interim order. LE said that she had attended a ballet school and was waiting there when SX followed her and their daughter to an upper level of the building and stood staring at them from the other side of the room. LE gave evidence that she observed her child staring at the floor and that her daughter was ‘very scared and she was frightened’. LE said that she paid the fees for her daughter's ballet lessons and went downstairs to the car with SX so that he could collect some items. LE said that SX ‘stood over [her], extremely close’. She said SX followed her around the car and then ‘he grabbed the bag out of [her] hands and left’. I will refer to this as ‘the ballet school incident’.

• (b) The second incident occurred the next day when LE was driving out of Canberra past the Eaglehawk Resort. She noticed that SX was driving on the same road and ‘followed me maybe half an hour which was, you know, pretty strange’. I will refer to this as the ‘Eaglehawk following incident’.

• (c) The third incident occurred the next morning when LE took her daughter to school and she saw SX on a raised area looking down at her. The evidence was that her daughter was ‘very scared again’. I will refer to this as ‘the school incident’.

• (d) The fourth incident occurred at the...