Tomlinson (a pseudonym) v Roberts

1. This is an application by Mr Ryan Tomlinson (a pseudonym) for leave to appeal out of time against an order made in the Magistrates Court on 22 July 2025. On that date, after a contested hearing, the Magistrate made a final family violence order against the applicant protecting the respondent to these proceedings and her two-year-old son for a period of two years.

2. In the Court below and on the hearing of this application, the respondent was self-represented. She told me this was due to financial considerations. The respondent opposed the application.

3. The applicant’s solicitor filed an affidavit affirmed on 22 August 2025, in which she explained that the delay was caused by an error she made in calculating the last day to file the notice of appeal. She thought that the last date to appeal was 22 August when in fact it was 19 August 2025. She had received instructions from the applicant on 13 August to appeal the order. She then obtained counsel's advice, which was received on 18 August 2025.

4. Ms Hitchins, who appeared for the applicant, referred me to a number of authorities which discussed the relevant principles to be applied in an application for leave to file a notice of appeal out of time. I have had particular regard to those authorities, including Doyle v Gillespie [2010] ACTSC 21; 4 ACTLR 188, R v Meyboom [2012] ACTCA 2; 256 FLR 450 and Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49.

5. I accept that the principles I must apply in considering this application are correctly summarised in the judgment of Concerned Citizens of Canberra Inc at [21]: The principles may be summarised as follows: 1. Time limits are important and must, prima facie, be obeyed. 2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion. 3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so. 4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant. 5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension. 6. The mere absence of prejudice is not enough to justify the extension of time. 7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted. 8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case. 9. Nevertheless, 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. 10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.

6. In oral argument before me, Ms Hitchins submitted that the delay was wholly her own fault and that the applicant should not be penalised on that account and she is correct to do so. She has submitted that the respondent has suffered no real prejudice by the delay of some three days and I accept that submission as well. However, I am mindful of the fact that the mere absence of prejudice is not enough to justify an extension of time on an application of this nature.

7. I must be satisfied that having regard to the important value of finality and litigation and the need for time limits to be respected, that it is proper to grant an extension of time.

8. Without deciding the appeal, I should at least determine whether the applicant has any arguable grounds of appeal. However, to decide that issue, I have had to have regard to both the grounds of appeal and understanding of the judgment and at least a cursory look at some of the evidence in order to understand the grounds of appeal.

9. The proposed grounds of appeal are that: (a) The Magistrate either erred or did not apply the Briginshaw test. (b) The Magistrate reversed the onus of proof. (c) The Magistrate had predetermined the matter prior to submissions. (d) The findings of fact are unreasonable and not open on the evidence.

10. In respect of the first ground, Ms Hitchins submitted that the Magistrate's reasons are silent as to how he applied the test in Briginshaw, nor do they elucidate how he was reasonably satisfied. The Magistrate said at pages 84, 93 and 94 of the transcript: I must be satisfied of these matters on the balance probabilities having regard to the definition of family violence in section 8. I do accept, as Mr Lo Schiavo said on behalf of the respondent, that I need to have regard to the principles in Briginshaw in relation to the allegations made against the respondent, particularly those from 2018, 2019. If I am satisfied that there has been family violence or that the applicant has reasonable grounds to fear it, I may make a final order which imposes conditions on the respondent. A non-exhaustive list of conditions as set out in section 38. … Perhaps if I could now briefly deal with each of the incidents as to their characterisation. The 2018 assault incident, in my view is clearly family violence. It’s the nature of physical violence. Indeed, as I said earlier, provides some evidence of serious criminal offence, being aggravated choking. The seriousness of that is not lost on me, and I’ve had regard – a close regard to the evidence about it before making that finding. The 2019 bathroom door incident, again, that is clearly an act of family violence, aggravated property damage. Again, I make the same observations about it being a possible criminal offence. The respondent’s conduct in locking his child outside, in my view, that is family violence against the son, constitutes emotional abuse. It’s conduct clearly designed to teach the son a lesson, but it did so in a way that necessarily must have made him feel alone and vulnerable.

11. The Briginshaw test in relation to proof is a test which is well known to all judicial officers. The application of the test in the circumstances where some of the matters to be determined involve potential criminal charges is an important matter. The Magistrate acknowledged this in his remarks to which I have already referred above and in those remarks, I consider that it is obvious that he understood perfectly well the nature of the test, that he needed to apply it and in fact did apply it. In my view, nothing more was required.

12. The next complaint which Ms Hitchins raised was in relation to the remark made by the Magistrate in his decision when he said (at page 85 of the transcript): The respondent’s evidence on the other hand, mainly comprised general denials against him – sorry. General denials without any capacity to respond to the particular allegations that have been raised against him.

13. That remark was made towards the end of the Magistrate's reasons. The applicant's submission overlooks the fact that the Magistrate's reasons leading to that remark are replete with references to and reasons for rejecting the applicant's evidence on all the incidents relied on by the respondent in the Court below.

14. The Magistrate went through each and every incident carefully and gave clear reasons for his acceptance of the complainant's evidence and for his rejection of the applicant’s evidence. I can discern no reversal of the onus of proof in the Magistrate's reasoning.

15. The next ground is a complaint that the Magistrate predetermined the matter prior to submissions being made at the end of the trial. This complaint arises out of another comment that the Magistrate made at the commencement of his quite lengthy reasons when he said (at page 83 of the transcript): I’m going to give my decision. I had started preparing some notes last night to make this an easier process than otherwise would be, but I don’t – they didn’t save. So it might be a tiny bit – I’m not sure what the right word is. Not smooth, but I will do my best.

16. With respect to this complaint, I simply observe that any diligent and competent judicial officer engages in a degree of written preparation in readiness for either writing or delivering decisions. In the Magistrates Court, which is one of the busiest courts in the land, a magistrate would not be able to keep up with the workload if he or she did not engage in at least some written preparation. To suggest that because the Magistrate had prepared some notes before he delivered his decision orally the next day after he heard submissions, that he therefore predetermined the outcome before hearing those submissions, is in my view without any proper foundation in light of my comments above.

17. As to the complaint that the verdict was unreasonable, the only evidence relied on by Ms Hitchins was the Magistrate's comments in relation to an incident which occurred on 29 January 2019. In the course of his reasons why he had concluded that the damage to the bathroom door had not been caused in the way the applicant had submitted, he made a remark that it was unlikely that the respondent would be able to put a dent in the door just from banging on it with her hands given her size.

18. In respect of the same incident, his comment in relation to the inconsistency in the applicant’s evidence between his examination-in-chief and cross-examination about where he said he was at the relevant time when the incident began, namely in the shower or the bathroom, was also relevant to his rejection of the applicant’s credibility in relation to how that incident evolved. It might well be that most showers are in the bathroom of a house, however that is not to the point. Whether the applicant was in the shower or in the bathroom at the relevant time was plainly relevant to the credibility of his explanation how the incident began.

19. Having read the remarks of the Magistrate, which I note were detailed and thorough in relation to all incidents relied on by the respondent, I do not consider that there is even one arguable ground of appeal put forward by the applicant. I would have been prepared to grant the application as the delay here was minimal and, as I have said, there can be no real prejudice by such a short delay.

20. However, having read the whole of the Magistrate's remarks, as I said, I do not consider there is one scintilla of material to support the submission that the grounds are arguable. Having concluded that there are no arguable grounds, I do not consider that it is in the interests of justice to grant the extension of time within which to appeal. To allow this matter to go forward would, in my view, be a waste of everybody's time and put the respondent, in particular, to unjustified expense, worry and delay.

Order

21. For these reasons, the application for leave to appeal out of time is refused.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: 23 September 2025