BINDAI -v- JUGARIE [2016] WADC 68
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 68 | |
| Case No: | APP:12/2016 | 13 MAY 2016 | |
| Coram: | BOWDEN DCJ | 17/05/16 | |
| PERTH | |||
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed matter remitted to Magistrates Court | ||
| PDF Version |
| Parties: | KEVIN BINDAI DEANNE JUGARIE |
Catchwords: | Appeal Application to vary a final violence restraining order Notice not given to person bound by the order Magistrate had no power to deal with the application to vary final violence restraining order ex parte Jurisdictional error Section 36 Magistrates Court Act 2004 Breach of natural justice Appeal allowed |
Legislation: | Restraining Orders Act 1997 (WA) |
Case References: | Eastman v Director of Public Prosecutions (ACT) (2003) 140 A Crim R 472 Gallo v Dawson [1990] HCA 30 Girando v Girando (1997) 18 WAR 450 Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 McWaters v Shirley [2005] WASC 188 Pillage v Coyne [2000] WASCA 135 R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216 Re Burton; Ex parte Lowe [2003] WASCA 306 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; [2003] HCA 56 Simonsen v Legge [2010] WASCA 238 Sims v Suda Ltd [2015] WASCA 65 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DEANNE JUGARIE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE WEBB
File No : KUN 1561 of 2012
Catchwords:
Appeal - Application to vary a final violence restraining order - Notice not given to person bound by the order - Magistrate had no power to deal with the application to vary final violence restraining order ex parte - Jurisdictional error - Section 36 Magistrates Court Act 2004 - Breach of natural justice - Appeal allowed
Legislation:
Restraining Orders Act 1997 (WA)
Result:
Appeal allowed matter remitted to Magistrates Court
Representation:
Counsel:
Appellant : Mr D Brunello
Respondent : No appearance
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : Not applicable
Case(s) referred to in judgment(s):
Eastman v Director of Public Prosecutions (ACT) (2003) 140 A Crim R 472
Gallo v Dawson [1990] HCA 30
Girando v Girando (1997) 18 WAR 450
Lackovic v Insurance Commission (WA) (2006) 31 WAR 460
McWaters v Shirley [2005] WASC 188
Pillage v Coyne [2000] WASCA 135
R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216
Re Burton; Ex parte Lowe [2003] WASCA 306
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; [2003] HCA 56
Simonsen v Legge [2010] WASCA 238
Sims v Suda Ltd [2015] WASCA 65
1 BOWDEN DCJ: On 13 May 2016 I allowed Mr Bindai's appeal. These are my reasons.
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- AGLC
- Bindai v Jugarie [2016] WADC 68
- Case
- [2016] WADC 68
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CaseChat Overview and Summary
In the matter of Bindai v Jugarie, the appellant, Bindai, sought to appeal against a decision of the Magistrates Court to vary a final violence restraining order. The respondent, Jugarie, had not been notified of the application to vary the order, which was made ex parte. The appeal was heard in the Supreme Court. The central issue for the court was whether the Magistrates Court had jurisdiction to make the order to vary the restraining order without providing notice to the person bound by the order. The court further considered whether the failure to provide notice constituted a breach of natural justice and whether this amounted to a jurisdictional error under section 36 of the Magistrates Court Act 2004.
The court held that the Magistrates Court did not have the jurisdiction to deal with the application to vary the restraining order without providing notice to the respondent. The court reasoned that the requirement to provide notice is a fundamental aspect of natural justice, and its omission constituted a jurisdictional error. The court found that the Magistrates Court's failure to provide notice to the respondent resulted in a breach of natural justice and that this was a significant error which affected the court's jurisdiction. Consequently, the court concluded that the appeal should be allowed and the matter should be remitted to the Magistrates Court for further consideration in line with the correct legal principles.
In light of the findings, the court allowed the appeal and remitted the matter to the Magistrates Court. This decision underscores the importance of procedural fairness and the necessity for courts to adhere to the principles of natural justice, particularly when dealing with matters that have significant consequences for individuals. The outcome ensures that the respondent will have an opportunity to be heard before any further orders are made, thereby upholding the integrity of the legal process.
The court held that the Magistrates Court did not have the jurisdiction to deal with the application to vary the restraining order without providing notice to the respondent. The court reasoned that the requirement to provide notice is a fundamental aspect of natural justice, and its omission constituted a jurisdictional error. The court found that the Magistrates Court's failure to provide notice to the respondent resulted in a breach of natural justice and that this was a significant error which affected the court's jurisdiction. Consequently, the court concluded that the appeal should be allowed and the matter should be remitted to the Magistrates Court for further consideration in line with the correct legal principles.
In light of the findings, the court allowed the appeal and remitted the matter to the Magistrates Court. This decision underscores the importance of procedural fairness and the necessity for courts to adhere to the principles of natural justice, particularly when dealing with matters that have significant consequences for individuals. The outcome ensures that the respondent will have an opportunity to be heard before any further orders are made, thereby upholding the integrity of the legal process.
Orders
Orders of the court
Appeal allowed matter remitted to Magistrates Court
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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