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1. This is an application in proceeding by the respondent to this appeal, DT, to strike out the appeal pursuant to the court’s inherent jurisdiction. The application was originally made on the basis that the appeal was incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT). However, pursuant to leave granted on 9 May 2025, the application was amended so as to invoke the inherent jurisdiction of the court.

2. The appeal which is sought to be struck out is an appeal by a person bound by a family violence order (FVO). As described later, that order has been extended on a number of occasions. The appeal relates to an extension of the FVO as a result of orders of the Magistrates Court made on 24 November 2022. The two grounds of appeal to this court are: 1. The magistrate took only s. 86 of FV Act as relevant when making the extension. 2. He extended it for too long by 2 years. It was last extended by 1 year. With this two years the FVO will be for 7 years.

3. The terms of these grounds of appeal are significant for the present application in proceeding.

4. The grounds of the respondent’s amended application include the following: 1. It has long been established that a court has the power to ensure that its own processes are not abused (von Risefer & Ors v Permanent Trustee Co P/L & Ors [2005] QCA 109 at [14]-[15]). This power has been exercised by this Honourable Court to strike out an appeal (Barlow v Law Society of the ACT (No 2) [2017] ACTSC 121). 2. The Appellant’s appeal constitutes an abuse of the Courts process because the extended Family Violence Order entered 24 November 2022 (“the 2022 Extended FVO”), which is the subject of the current appeal proceedings, expired on 23 November 2024, and is no longer operative, such that there is no order to now appeal from. 3. The 2022 Extended FVO was further extended by order of the ACT Magistrates Court on 19 November 2024, for a period of 21 March 2025 [sic]. This extended FVO was further extended to 9 May 2025 and was then extended again to 26 June 2025. The extended orders are wholly new Family Violence Orders. No appeal in relation to any of the extended orders has been filed by the Appellant. 4. The grounds of appeal in the Appellant's Notice of Appeal are substantially the same as those articulated in four (4) previous Notices of Appeal filed by the Appellant. All four (4) previous appeal proceedings have been dismissed by the courts hearing those appeals, for substantially similar reasons. th 5. The current appeal is the fifth (5 ) appeal commenced by the Appellant in relation to substantially the same subject matter, and raising substantially the same grounds of appeal. 6. The current appeal proceedings are vexatious and an abuse of the Court's process, in circumstances where the 2022 Extended FVO has now expired, and the Appellant has not appealed any of the further extended orders. 7. Ground 1 of the Appellant's Notice of Appeal is vexatious and an abuse of process [as it] articulates a ground which has been ventilated by the Appellant (without success) in previous appeal proceedings relating to substantially the same subject matter. 8. Ground 2 of the Appellant's Notice of Appeal is an abuse of process because the 2022 Extended FVO has already expired. Even if successful, any order made by this Honourable Court to reduce the length of the 2022 Extended FVO would have no practical effect.

5. In response to the amended application, the appellant made submissions to the following effect: (a) The power to strike out proceedings on the basis of the inherent jurisdiction must be exercised fairly to ensure that the integrity of the court is not compromised. Of the various categories of cases in which it should be exercised, none are applicable here. The power to prevent an abuse of process does not apply because the appellant is the one who has been on the receiving end of an injustice by being forcibly removed out of a house which he co-owned. Instead of living in his four bedroom house, he has been living in “cockroach and rat infested garages and sharing houses that application is made for demolition with walls and roofs crumbling”. So far as other bases for the exercise of the inherent power of the court are concerned — listed by the appellant as ensuring fairness, controlling court proceedings or punishing contempt — these have no application in the present case. (b) The decision in von Risefer v Permanent Trustee Co Pty Ltd [2005] QCA 109; 1 Qd R 681 has no application as that was a case in which there was an application for special leave. (c) Similarly, Barlow v Law Society of the ACT (No 2) [2017] ACTSC 121 involved completely different circumstances where the appeal itself was incompetent. That is not applicable in the circumstances of the case where incompetence is no longer asserted. (d) When he lodged this appeal, the order challenged was in force and “[t]he delay was due to CJ Mccullum [sic] sitting on it for nearly 2 years”. If he was successful in the appeal then “it will help in abolishing further extensions and also help to identify injustice to me”. (e) The extensions of the FVO to 9 May 2025 and to 26 June 2025 are not wholly new FVOs as they all have the same file number as that of the original order. He was never served with these FVOs and did not know about them. He was not even told to come to court when the application was made for an extension. (f) There have not been four previous appeals but only two. One of those was before Kennett J, the other was before three judges. The appeals prior to that were not against the extension but against the making of the original order. In the appeal before three judges, the grounds of appeal which had been extensively canvassed in submissions were not addressed in the judgment. The judgment was given by the Chief Justice without any concurrence from the other two judges. (g) If he is served with an FVO, he has no choice but to continually appeal because applications for extensions keep being made; “If men are treated like this no wonder they kill women.” (h) The proceedings are not vexatious in the sense of having little chance of succeeding in law. Whether or not they succeed “depends on whether we have Judges whose decisions are correct or not”. The appeal process should “flow on and not be undermined” because that would be an “obstruction and potential corruption of the justice system”. He submitted that he was an aggrieved party because his previous grounds have not been addressed at all. Whether or not the appeal would have any practical effect, it is not unreasonable to ask for a reduction in the length of the order when he has been kept out of the house which he co-owns with his wife since 17 September 2017. “[I]s it unreasonable for him to ask for a reduction in the length is the question that you and the feminist controlled Justice system of australia should ask. Is 8 years chucked out practical enough for you.” He made reference to the unsatisfactory, short term, inadequate accommodation in which he has been obliged to live because he has been excluded from the home that he part owns. (i) He emphasised that it was not his fault that the appeal was not heard prior to the expiry of the order the subject of the appeal. (That was because the Supreme Court had adjourned the hearing of his appeal until after the Court of Appeal gave its judgment, and that judgment was delayed for almost two years.)

Consideration and decision

6. This matter has a lengthy procedural history, consisting of various appeals to this court and the Court of Appeal against FVOs made by the ACT Magistrates Court. There is also an appeal against a stalking charge, which was successful in this court: TS v UG [2023] ACTSC 389.

7. The procedural history is set out in the following table which does not include certain interim extensions of the FVO between the orders that are identified:

Magistrates Court Order Appeal to the Supreme Appeal to the Court of Court Appeal File: FVO 489/2017 Citation: [2019] ACTSC Citation: [2020] ACTCA 295 43 Date: 14 March 2019 (Chief Magistrate Walker) Date: 25 October 2019 Date: 27 August 2020 (Crowe AJ) (Elkaim, Mossop and Order: An FVO for a period of Collier JJ) two years Order: Appeal dismissed Order: Appeal dismissed File: FVO 489/2017 Citation: [2022] ACTSC Citation: [2025] ACTCA 137 6 Date: 10 September 2021 (Magistrate Theakston) Date: 10 June 2022 Date: 21 February 2025 (Kennett J) (McCallum CJ, Baker and Order: FVO extended for 12 Rangiah JJ) months Order: Appeal dismissed Order: Appeal dismissed File: FVO 489/2017 Date: 24 November 2022 (Magistrate Stewart) [This appeal] Order: FVO extended for two years File: FVO 489/2017 Date: 21 March 2025 (Magistrate Temby) [No appeal] Order: FVO extended to 9 May 2025 File: FVO 489/2017 Date: 9 May 2025 (Magistrate Lawton) [No appeal] Order: FVO extended to 26 June 2025

8. For present purposes, the terms of the FVO are not significant, although they had the effect of excluding the appellant from the home that he owned jointly with the respondent.

9. Of significance for the purposes of the present application is what was found by the Court of Appeal in the most recent appeal, TS v DT [2025] ACTCA 6. In that appeal, the determinative issue was the scope of the matters relevant to the exercise of the power under s 86 of the Family Violence Act 2016 (ACT), the provision under which the amendment of the FVO so as to extend its operation was made.

10. Section 86 provides: Final orders—extension (1) The Magistrates Court must, on application, amend a final order (the original order) by extending it for a stated period unless satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent. (2) If the parties consent to the application to amend the original order, the Magistrates Court must amend the original order without considering the matter mentioned in subsection (1).

11. In TS v DT [2025] ACTCA 6, the Court of Appeal said of this provision the following: 68. The appeal judge’s conclusion as to the proper construction of s 86 of the Family Violence Act was plainly right, for the reasons his Honour gave at [21]-[26]. Parts of that analysis are set out above. In summary, his Honour concluded: (a) although an application for extension of a family violence order is treated at least procedurally as an application for amendment, extensions are a special class of amendment; (b) the power to amend in s 83 is discretionary, subject to the Magistrates Court being satisfied as to the matters set out in the section; (c) by contrast, s 86 “creates a class of case in which an extension must be granted”. This follows from the terms of s 86(1) which provides that the Magistrates Court “must” extend a final order when asked to do so, “unless” it is satisfied that an order is no longer necessary to protect the protected person from family violence by the respondent to the order, the only discretion being as to the period of the extension; (d) implicitly, in any case not falling within the class of case in which an extension must be granted, an extension must not be granted; (e) the criteria that apply to decisions about the making of a family violence order (including ss 14, 36, 37 and 39) might be relevant in deciding under s 83 whether to amend an order in a case other than an application for an extension. However, the decision whether the order should be extended is governed by a single criterion, namely, whether the court is “satisfied that a protection order is no longer necessary to protect the protected person from family violence by the respondent”. An application to extend an order is not, without more, an invitation to reconsider and re-draft particular provisions of that order. (f) the period of the extension is to be fixed having regard to all the circumstances of the case and, in particular, an assessment (to the extent that it can be made) of the period for which an order is likely to remain “necessary”; (g) it is up to the respondent to the order to show that the order is no longer necessary; (h) there is no reason an application for an extension cannot be heard at the same time as an application to amend the conditions of the order, so long as it is kept in mind that the two tests (for amendment under s 83 and for an extension under s 86) raise very different issues and need to be the subject of distinct thought processes. 69. The application before the magistrate was DT’s application for an extension. That application was governed by a single criterion, namely, whether the magistrate was satisfied that a protection order was no longer necessary to protect the protected person from family violence by the respondent. In making that assessment, the magistrate was, with respect, wrong to have regard to the provisions that apply to the determination whether to make a family violence order. The “special class” of amendment applications, being applications for the extension of a final order, treat those issues as closed for the purposes of the extension application. The appeal judge was right to hold that the magistrate erred in his approach to DT’s application.

12. The significance of that passage is that it demonstrates the very limited scope of the matters required to be considered for the purposes of an application under s 86. The only question is whether the court is satisfied that a protection order is no longer necessary to protect the protected person from family violence. If it is not so satisfied, then the extension of the order is mandatory and the only issue is how long it should be extended for.

13. When the challenged order was made, the reasons given by the magistrate were as follows: In this matter there has been an application to extend the family violence order. The present order expires at 4.00 pm today and was extended on 7 September this year by her Honour Magistrate Tara [sic]. The application is opposed. The circumstances of this relationship are that the parties are separated. There is clear ongoing Family Court of Australia financial disputes, against a background of actual violence. If the family violence order is discontinued, the respondent intends to live under the same roof as the applicant. She remains in fear of him. In those circumstances, the family violence order should be extended for two years, in circumstances where it is not shown that the order is no longer necessary. I am extending the order for two years.

14. It can be seen that the reasons given by the magistrate carefully focused on the narrow issue required by s 86.

15. Having regard to the decision of the Court of Appeal, it is clear that ground one in the Notice of Appeal could not succeed. It is the subject of a determination of the same issue between the same parties in a previous decision.

16. On this issue, the submissions made by the appellant appeared to contain two misconceptions. The first misconception was that the most recent Court of Appeal decision was only a decision of the Chief Justice. That appeared to be because it was the Chief Justice who delivered the decision in court pursuant to s 37M of the Supreme Court Act 1933 (ACT), and that there were no separate concurring judgments given by Justices Baker and Rangiah, who also heard the appeal. That submission fails to take account of the fact that the reasons given were the reasons of the Court, namely reasons joined in by each of the judges who sat. The appellant pointed to the earlier decision of a differently constituted Court of Appeal, TS v DT [2020] ACTCA 43, in which Collier J wrote the principal judgment and Elkaim J and I wrote brief concurring judgments. He contrasted that with the later judgment where there were no separate reasons given by each of the judges who sat. There is, however, no necessity for each judge of the Court of Appeal to write a separate judgment, and a judgment of “the Court” indicates that the reasons have been adopted by each member of the court. It was, therefore, a judgment of each of McCallum CJ, Baker J and Rangiah J. It was an error on the part of the appellant to make the assumption that the reasons given by the Court, most particularly in relation to the interpretation of s 86, only involved reasons given by one of the three judges who sat. It is a decision of the Court of Appeal constituted by three judges which is binding upon the appellant and binding upon any single judge who would hear his current appeal.

17. The second misconception is that it is open to the appellant to simply reargue the interpretation of s 86 before a “new judge”, notwithstanding the earlier determination by the Court of Appeal of its proper interpretation. He made it clear in his submissions that he felt that s 86 had been misinterpreted and that he hoped to “give submissions to the new judge”, and if the issue was decided against him, he would appeal to the Court of Appeal and then the High Court. However, the decision of the Court of Appeal determined that issue as between appellant and respondent and is subject to an issue estoppel. It is not open to the appellant to simply relitigate the same issue, hoping for a different result before a single judge to that determined previously by the Court of Appeal. It was the Court of Appeal’s interpretation of the scope of s 86 that meant that it was inappropriate for that court to consider the wider-ranging factual grounds of the appellant’s appeal to that court. Because the interpretation of s 86 was considered and determined by the Court of Appeal previously, and indeed, by Kennett J, that issue is subject to an issue estoppel. The nature of an issue estoppel is described in Blair v Curran (1939) 62 CLR 464 at 531-532: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

18. Consistent with this articulation of the principle, the Court of Appeal’s determination of the interpretation of s 86 “cannot afterwards be raised between the same parties or their privies”. That precludes the appellant’s challenge in the current appeal of the decision of the magistrate articulated in ground one of his Notice of Appeal.

19. So far as ground two in the Notice of Appeal is concerned, that challenges the length of the extension granted. Having regard to the fact that this order has now expired by the effluxion of time and been replaced by a further order, even if the appellant could succeed in establishing some as yet unparticularised discretionary error in the determination of the length of the extension of the order, he would have no prospect of obtaining any relief in relation to that order because any relief would lack utility, having regard to the fact that the order had already expired.

20. However, these defects in the Notice of Appeal did not make it incompetent in the manner that was alleged in the original application in proceeding. To say that proceedings are incompetent does not involve the use of the word “incompetent” in its ordinary sense. Rather, it is a legal term of art which indicates that a proceeding cannot be brought because the law does not permit it. That is because, for one reason or another, the court lacks jurisdiction to entertain the proceedings. For example, an appeal will be incompetent if there is no statutory provision which permits such an appeal to be brought.

21. In this case, the appeal was not incompetent in the legal sense. The jurisdiction of the court under s 93 of the Family Violence Act (when read in light of s 92 and the definitions of “appealable decision” and “amend” in the Dictionary) has been effectively invoked by the filing of the Notice of Appeal. That jurisdiction is not removed by the Court of Appeal’s determination of the legal question arising out of an earlier iteration of the FVO. Nor is it removed by the expiry of the order.

22. Rather, the proceedings have become doomed to fail for the different reasons outlined above. In relation to ground one, that is because, as a matter of authority and issue estoppel, the ground must fail. In relation to ground two, that is because as a matter of discretion, having regard to the expiry of the order and its replacement with a new order, there is no prospect of relief being granted even if an error could be identified.

23. Having regard to what I have said about the futility of the appeal, the continuation of the appeal may be characterised as frivolous or vexatious or an abuse of process. While the jurisdiction of the court was properly invoked and the appeal could not originally be characterised as frivolous, vexatious or an abuse of process, it is the continuation of the proceedings following both the determination by the Court of Appeal and the expiry of the challenged order which allows the proceedings to be so characterised.

24. The appeal will therefore be dismissed pursuant to the inherent powers of the court. No order as to costs was sought.

25. Finally, I observe that, now that the FVO has been replaced by a series of interim orders, those orders are very difficult to practically challenge because they only operate for short periods. However, the reason that they have been made on an interim basis is because of the inability to locate and serve the appellant. Once the appellant is served, it will be possible for the Magistrates Court to conduct a hearing on the substance of the latest extension application and, if an extension is granted for any significant length of time, the appellant will be able to exercise his right of appeal from that decision.

Orders

26. The orders of the Court are: (1) The appeal is dismissed. (2) There is no order as to costs.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: