In the 2020 case of OSE v HAN, District Court Judge Byrne QC considered an appeal of a decision of a magistrate to, in effect, summarily dismiss an application for a protection order under the Domestic and Family Violence Protection Act.
As part of his judgment Judge Byrne QC concluded that an implied power to summarily dismiss or terminate an application for a protection order does exist.
In summary Judge Byrne QC reasoned as follows.
The Magistrates Court is itself created by statute. [40] … It is therefore imbued with all express powers conferred on it by statue, as well as the power to do anything necessary for the exercise of those express powers.
In proceedings under the Domestic and Family Violence Protection Act…[41]…the Court [is] specifically empowered to “hear and decide the application” for the protection order. The Act neither prescribes nor proscribes the methods by which the Court can “hear and decide the application”. The absence of conferral of an expressed power to determine a proceeding by a no case submission does not necessarily mean that the use of that procedure is unavailable.
[44] A power will be implied only if it is “necessary” for the effective exercise of the jurisdiction which is expressly conferred, and is confined to that which is actually necessary.
[45] …The broad power to “hear and decide the application” expressly conferred in the present matter stands in contrast to those more restrictive provisions [in a committal hearing], and permits the existence of an implied power to summarily dismiss the application or otherwise summarily terminate the application, in appropriate circumstances.
[46] In my view, a Court hearing an application for a Protection Order under the DFVP Act has an implied power to summarily dismiss or otherwise terminate the proceedings determining the application on the basis of a lack of evidence capable of supporting the making of the order sought, where that is appropriate…
[47] …The power is however not unrestrained, and the occasion to exercise it will be relatively infrequent.
[59] In order to give effect to the fact that an application for summary dismissal of the application for a Protection Order can only be granted after exercising exceptional caution and only when the need is clearly demonstrated, and to give effect to the principles for administering the DFVP Act, I consider that the following principles apply:
(a) Given the nature of an application for summary dismissal and the fact it is brought before a judicial officer who is both the tribunal of fact and the tribunal of law, any factors which may tend to make consideration of the application inappropriate for any reason must be given full weight, and should usually result in the judicial officer declining to consider the application until all evidence is adduced in the hearing. It is only in the very clearest of cases that the application should be entertained before the respondent has been put to his or her election.
(b) If the application is entertained prior to the respondent being put to their election, the application must be determined only on the evidence adduced in the applicant’s case. This will include any material tendered by the applicant which benefits the respondent, but will not include any material tendered by the respondent during the applicant’s case unless it is made admissible through cross-examination (or in this case where the rules of evidence do not apply, is properly received as a result of cross-examination). If there is any evidence in the applicant’s case which, taken at its highest, is capable of supporting the application, no matter how tenuous or inherently weak or vague, the application for summary dismissal must be dismissed.
(c) Where the respondent is put to his or her election and declines to give or call any (possibly further) evidence, the application for summary dismissal must be determined in the manner outlined in the sub-paragraph immediately above, but any inferences that arise in the particular circumstances from the election to not adduce any evidence can also be taken into account.
(d) Where the respondent is put to his or her election and elects to give or call evidence, the application for summary dismissal must be determined on all of the evidence.
But while the power exists it should be noted that [60]…the fact of a successful application for summary dismissal will not necessarily determine the success of a costs application.
If you are an Applicant or Respondent in an Application for a Protection Order and require advice on whether an application for summary dismissal may be appropriate in your matter, the litigation team at FC Lawyers is here to assist in your legal matters and to answer any queries or concerns you might have.
Contact our experienced team today.
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