Blomeley v Blomeley [2008] NTSC 53

PARTIES:	BLOMELEY, ROBERT SHANE

	v

	BLOMELEY, BEATRICE DUBACH

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:	JA53/2008 (20814715); JA56/2008 (20814717)

DELIVERED:	17 December 2008

HEARING DATE:	5 & 17 December 2008

JUDGMENT OF:	THOMAS J

CATCHWORDS:

APPEAL -- GENERAL PRINCIPLES -- ADMISSION OF FRESH EVIDENCE

Failure to adduce evidence at hearing – failure to give written notice of proposed evidence to be called – matter remitted to Court of Summary Jurisdiction

Justices Act 1928 (NT), s 176A, s 177.

REPRESENTATION:

Counsel:
	Appellant:	Self Represented
	Respondent:	Self Represented

Judgment category classification:	C
Judgment ID Number:	tho200806
Number of pages:	8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Blomeley v Blomeley [2008] NTSC 53
No. (20814715)

	BETWEEN:

	SHANE ROBERT BLOMELEY
	Appellant

	AND:

	BEATRICE DUBACH BLOMELEY
	Respondent

CORAM:	THOMAS J

REASONS FOR JUDGMENT

(Delivered 17 December 2008)

[1]	On 22 August 2008, his Honour Mr McGregor SM made an order in terms of paragraphs 1-6 of the application as follows:
“For a period of 12 months the defendant Shane Blomeley must:
1.	Not approach or remain at any place where Beatrice Dubach Blomeley is living, staying or working
2.	Not approach Beatrice Dubach Blomeley directly or indirectly
3.	Not contact Beatrice Dubach Blomeley directly or indirectly
4.	Not assault or threaten to assault Beatrice Dubach Blomeley directly or indirectly
5.	Not damage or threaten to damage property in the possession of Beatrice Dubach Blomeley
6.	Not act in an offensive or provocative manner towards Beatrice Dubach Blomeley
Order that the defendant return to applicant forthwith the property described in the schedule BB – 1 to the affidavit of Beatrice Blomeley sworn 22nd August 2008 (s 21(1)(c))
…..
This order shall, unless it is sooner revoked or varied, continue in force to and including 22 August 2009.”
[2]	The learned stipendiary magistrate further ordered the application made by Robert Shane Blomeley be struck out for want of prosecution.
[3]	On 10 September 2008, Mr Robert Blomeley filed a Notice of Appeal with respect to the Domestic Violence Orders on the basis that the Court hearing took place in his absence on 22 August 2008.
[4]	On 7 November 2008 Mr Blomeley filed a further Notice of Appeal to also include an appeal against the order dismissing his application, for want of prosecution.  Again, the basis of the appeal was that he was not present at the Court hearing on 22 August 2008.
Background History
[5]	On 28 May 2008, Beatrice Blomeley filed an application for a Domestic Violence Order in matter 20814715, claiming acts of violence by Robert Blomeley towards her and that he had taken her car keys.
[6]	On 28 May 2008, Robert Blomeley had filed an application for a Restraining Order in the Magistrates Court, matter 20814717, alleging his wife had physically assaulted him 10 to 12 times over a period of four years.  He also stated they had a real estate business together and that he needed to make repayments on the mortgage.
[7]	Both applications were listed for hearing on 30 May 2008.
[8]	On 30 May 2008, the matter came before Mr Wallace SM.  Beatrice Blomeley sought an adjournment for legal advice.  Robert Blomeley attended on that date.  The matter was adjourned to 6 June 2008.
[9]	On 6 June 2008, both parties appeared before Ms Blokland CM.  The matter was further adjourned to enable the parties to seek legal advice and/or sort out their affairs.
[10]	On 20 June 2008, Robert Blomeley appeared.  There was no appearance of Beatrice Blomeley.  The magistrate pointed out to the solicitor appearing for Beatrice Blomeley that the application filed by Beatrice Blomeley was lacking in detail and that Robert Blomeley could not be expected to come to Court and deal with the matter without some understanding of what the allegations were about.  Ms Melanie Warbrooke, who appeared amicus curae for Beatrice Blomeley, undertook to make contact with her.  Robert Blomeley raised concerns about their financial situation.  He was advised he would have to make an application before the Federal Magistrate with respect to the property issues.  Beatrice Blomeley was ordered to file an affidavit in support of her application before 2 July 2008.  Both applications were adjourned to 4 July 2008.
[11]	On 4 July 2008, Beatrice Blomeley was represented by Mr Snell.  Robert Blomeley appeared unrepresented.  Mr Snell tendered an affidavit prepared by Beatrice Blomeley sworn 4 July 2008 in support of her application.  Mr Snell indicated that he was prepared to discuss matters with Robert Blomeley to try and effect a settlement.  Robert Blomeley again raised his concerns about trying to access the accounts of their joint business.  Mr Blomeley complained Mr Snell had been rude to him when he had last tried to discuss the matter with him.  The magistrate urged Mr Blomeley to have further discussions with Mr Snell and stood the matter down till 12 o’clock.
[12]	Upon resumption of the matter later on the same date, Mr Snell advised the Court that the matters could not be resolved between them.  Robert Blomeley raised the issue of access to their joint funds as he wanted his own legal advice.  The magistrate advised Robert Blomeley that he had to arrange for legal advice for himself and that there was nothing the Court could do in that respect.  The matter was adjourned for hearing on 22 August 2008.  Robert Blomeley acknowledged he had received the affidavit of Beatrice Blomeley sworn 4 July 2008.  The magistrate pointed out to him that he had seven weeks to get ready for the hearing.
[13]	On 22 August 2008, Robert Shane Blomeley failed to appear.  The orders previously referred to were made in his absence by Mr McGregor SM.  This learned stipendiary magistrate made reference to the letter from Robert Blomeley stating he was in Dubbo seeking legal advice.
[14]	Robert Blomeley filed a Notice of Appeal against the orders made in favour of Beatrice Blomeley on 10 September 2008 and subsequently on 7 November 2008 against the order dismissing his application.  The essential basis of his appeal in both matters is that he was absent from the Court on the date of the hearing on 22 August 2008.
[15]	The matter came before Martin CJ on 7 October 2008.  Beatrice Blomeley was represented by a lawyer from the NT Legal Aid Commission who appeared amicus curae.  Robert Blomeley was advised by the Chief Justice that he could apply to the Magistrates Court to seek a variation of the order that he not contact Beatrice Blomeley either directly or indirectly.  This would then enable him to make enquiries about the state of their joint business accounts.  The Chief Justice urged Robert Blomeley to seek legal advice and fixed the hearing of the appeal for 5 December 2008.  His Honour stated the matter would be referred to the Supreme Court Registrar to attend to the details for the preparation of the appeal.  For reasons I am not aware, the matter was never referred to the Registrar.  However, that is not now necessary as this Court has obtained all the relevant documentation.
[16]	On 5 December 2008, the matter came before me.  Robert Blomeley appeared to represent himself.  Beatrice Blomeley did not appear and no one appeared to represent her.  The matter was adjourned to 17 December 2008.  Following enquiry, the Northern Territory Legal Aid Commission forwarded a letter dated 9 December 2008 stating they would advise Beatrice Blomeley of the adjourned date but would not be representing her.
[17]	Mr Blomeley has indicated he wants to tender further evidence on the appeal.  I am not satisfied that Mr Blomeley has complied with the requirements of s 176A of the Justices Act which provides as follows:
“(1)	Where evidence is tendered to the Supreme Court, that Court shall, unless it is satisfied that the evidence, if received, would not afford a ground for allowing the appeal, admit that evidence if –
(a)	it appears to it that that evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal;
(b)	it is satisfied that that evidence was not adduced in those proceedings and there is a reasonable explanation for the failure to adduce it; and
(c)	it is satisfied that the appellant has complied with the requirements of subsections (2) and (3) in respect of that evidence.
(2)	An appellant shall not, under subsection (1), tender evidence to the Supreme Court unless he has, not less than 7 days before the hearing of the appeal to which the evidence relates is commenced by that Court, given, subject to subsection (3), written notice to the other party to the proceedings of the evidence to be so tendered including, where such evidence is to be given by a person, irrespective of whether it is to be given orally or by affidavit, the name, address and occupation of the person.
(3)	For the purposes of subsection (2), an appellant shall give a notice referred to in that subsection by delivering or leaving it at, or by sending it by registered post service to, the last known residential or business address of –
(a)	the other party to the proceedings; or
(b)	the solicitor, if any, of the other party to the proceedings.”
[18]	In particular I am not satisfied Mr Blomeley has a reasonable explanation for failing to adduce the evidence in the hearing of the respondent’s application for a Domestic Violence Order on 22 August 2008 as required by s 176A(1)(b).  Mr Blomeley was made well aware of the hearing date on 22 August 2008.  He chose not to attend.  The matter had been pending for some months.  The hearing date of 22 August 2008 had been fixed on 4 July 2008.  Mr Blomeley was well aware of the hearing date and had been provided with a copy of an affidavit sworn by Beatrice Blomeley dated 4 July 2008.  It is not sufficient to have sent a letter to the Court of Summary Jurisdiction advising that he was not attending because he was in Dubbo seeking legal advice.  The Court had allocated the date for hearing.  Mrs Blomeley was present and ready to proceed.  It was quite appropriate for the Court to proceed to hear the matter on 22 August 2008 and make orders based on the affidavit evidence of Mrs Blomeley.
[19]	Under s 176A(2) and (3), Mr Blomeley is required to give written notice to the respondent of the evidence he would be proposing to call on this appeal.  This has not been done and in the circumstances there is little point in adjourning the matter further.
[20]	Mr Blomeley has been advised on numerous occasions that he can apply to the Court of Summary Jurisdiction to vary the existing Domestic Violence Order.
[21]	It will be a matter for the Court of Summary Jurisdiction whether or not such application is granted.
[22]	With respect to this appeal I intend to proceed under s 177(1)(d) of the Justices Act and “remit the case for hearing or for further hearing before the Court of Summary Jurisdiction.”
[23]	It will be up to Mr Blomeley to make the application for variation of the Domestic Violence Order in the Court of Summary Jurisdiction.

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