Armstrong v Saxby

Case [2016] WADC 87


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

  1. 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.

  2. 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.

  3. 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

  1. In order to deal with the application, it is necessary for me to review the history of the matter.

  2. The application for a violence restraining order was commenced by application dated 2 February 2015.

  3. 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…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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