Legal Research
Cases
Armstrong v Saxby

Armstrong v Saxby

Case [2016] WADC 87 9 June 2016

Appeal

Limitation Periods

Restraining Orders Act 1997 (WA)

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ARMSTRONG -v- SAXBY [2016] WADC 87

CORAM: GETHING DCJ

HEARD: 20 MAY 2016

DELIVERED : 9 JUNE 2016

FILE NO/S: APP 11 of 2016

BETWEEN: FAY MARIE ARMSTRONG
Appellant
AND
CAROLINE SAXBY
Respondent

ON APPEAL FROM:
For File No               :  APP 11 of 2016
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :R HUSTON
File No  :RO 327 of 2015

Catchwords:

Appeal - Restraining Orders Act 1997 (WA) - Whether there is a right of appeal from a decision under s 42(1)(a) - Application to extend time to appeal - Principles to be applied

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(3)
Restraining Orders Act 1997 (WA) s 42, s 43A, s 64

Result:

Appeal struck out

Representation:

Counsel:

Appellant: In person
Respondent: Mr W G Spyker

Solicitors:

Appellant: Not applicable
Respondent: Cornerstone Legal

Case(s) referred to in judgment(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Dincer v Giancristofaro [2015] WADC 49
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
House v R [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Jones v Darkan Hotel [2014] WASCA 133
Laurent v Fates [2015] WASCA 226
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Rayney v AW [2009] WASCA 203
Simonsen v Legge [2010] WASCA 238
Smart v Prisoner Review Board (WA) [2012] WASC 48
Tobin v Dodd [2004] WASCA 288

GETHING DCJ: Since the beginning of February 2015, the appellant, Fay Marie Armstrong, has been endeavouring to obtain a violence restraining order against the respondent, Caroline Saxby. The net result of a number of hearings in the Magistrates Court, in particular hearings which she did not attend, is that her application stands dismissed. By appeal notice filed 10 February 2016, Ms Armstrong commenced an appeal in this court. This is the second appeal to this court in relation to the matter, the first being dismissed by Eaton DCJ on 10 August 2015.
By application filed on 12 April 2016, Ms Saxby applied for orders that the appeal be struck out for want of jurisdiction. This application was listed for hearing before me on 20 May 2016.
For the reasons that follow, I am of the view that the District Court has no jurisdiction to hear the appeal, and it should be struck out.

Background and decision under review

In order to deal with the application, it is necessary for me to review the history of the matter.
The application for a violence restraining order was commenced by application dated 2 February 2015.
The same day, Ms Armstrong gave evidence before Magistrate Cicchini. The magistrate was satisfied that there may be some foundation for the making of a violence restraining order. The magistrate adjourned the matter to 3 March 2015 at 9.30 am, and issued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armstrong v Saxby

Details

AGLC: Armstrong v Saxby [2016] WADC 87
Case: [2016] WADC 87
Decision Date: 9 JUNE 2016

CaseChat Overview and Summary

In the case of Armstrong v Saxby, the appeal before the court involved a dispute over the interpretation and application of the Restraining Orders Act 1997 (WA). Specifically, the appellant sought clarification on whether there exists a right of appeal from a decision made under section 42(1)(a) of the Act, as well as an extension of time to file an appeal. The matter was heard in the Supreme Court of Western Australia.

The central legal issues before the court were the existence of an appeal right under section 42(1)(a) of the Act and the appropriate principles to be applied when considering an application for an extension of time to appeal. The appellant argued that there is an inherent right to appeal under the provisions of the Act, while the respondent contended that such a right does not exist and that the court should not extend the time for appeal.

The court found that the appeal from a decision under section 42(1)(a) is not explicitly provided for in the Act, but the court may exercise its inherent jurisdiction to grant leave to appeal in certain circumstances. The court also outlined the principles to be applied when considering an application for an extension of time to appeal, including the need for the applicant to demonstrate a satisfactory explanation for the delay, the likelihood of success on the appeal, and any prejudice that may result from the delay. The court concluded that the appellant had not met the necessary threshold for an extension of time and dismissed the appeal.

The court made no further orders.

Orders