Blum v Boothman
[2014] WASC 452
•2 DECEMBER 2014
BLUM -v- BOOTHMAN [2014] WASC 452
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 452 | |
| 02/12/2014 | |||
| Case No: | CIV:2517/2014 | 26 NOVEMBER 2014 | |
| Coram: | MITCHELL J | 26/11/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BLUM KIERAN BOOTHMAN |
Catchwords: | Judicial review No utility Refused on discretionary grounds |
Legislation: | Magistrates Court Act 2004 (WA), s 36 |
Case References: | Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Perder Investments Pty Ltd v Elmer [1991] FCA 529; (1991) 31 FCR 201 Rayney v AW [2009] WASCA 203 Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
KIERAN BOOTHMAN
Respondent
Catchwords:
Judicial review - No utility - Refused on discretionary grounds
Legislation:
Magistrates Court Act 2004 (WA), s 36
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : No appearance
Solicitors:
Applicant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Perder Investments Pty Ltd v Elmer [1991] FCA 529; (1991) 31 FCR 201
Rayney v AW [2009] WASCA 203
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360
Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187
- MITCHELL J:
(This judgment was delivered extemporaneously on 26 November 2014 and has been edited from the transcript.)
Factual and procedural background
1 On 31 January 2011, the Magistrates Court at Perth issued a violence restraining order (Order)against the applicant, for the benefit of the applicant's former wife and children. The Order was expressed to be a final order. The applicant has deposed that he was served with the Order. I infer from the terms of the applicant's affidavit that service occurred at about the time the Order was made.
2 By s 16(5)(a)(ii) of the Restraining Orders Act 1997 (WA), the Order ceased to be in force two years after it was served on the applicant: ie, around 31 January 2013. The applicant's evidence is that the term of the Order was never extended.
3 The applicant says that he did not initially understand the Order to be a final order. Rather, he thought that, at the proceedings held on 31 January 2011, he consented, through his counsel, to the modification of an interim violence restraining order. He says that he realised that the Order was a final order only in mid-2012. He made a failed attempt to have the matter dealt with administratively at that time, but was told by the relevant registry that he should appeal to the District Court of Western Australia. The applicant says that the legal advice he received at that time was not to proceed with an appeal against the Order while Family Court proceedings were on foot. Those proceedings were resolved by the Family Court of Western Australia on 21 August 2014.
4 The applicant instituted these proceedings for judicial review of the Order on 17 October 2014. He seeks a writ of certiorari to quash the Order, or alternatively a declaration or variation of the record.
5 The applicant acknowledges that these judicial review proceedings will have no practical impact due to the expiry of the Order. He says that he has brought these proceedings 'to correct the record of the court out of a sense of obligation to the proper administration of justice and in order to defend [his] reputation'.
Certiorari
6 In my view, there are a number of obstacles to the applicant's success in these proceedings which must lead to the refusal of the application for a writ of certiorari.
7 First, when the Order was made, s 64(1)(b) and s 64(2) of the Restraining Orders Act provided that the applicant could appeal against the decision to make the Order in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). Such an appeal could not be commenced more than 21 days after the decision unless the District Court gave leave to do so: s 40(3) of the Magistrates Court (Civil Proceedings) Act. The fact that the applicant did not pursue that available alternative avenue of relief counts strongly against the discretionary grant of certiorari.1
8 Secondly, the function of certiorari is to quash the legal effect or legal consequences of the decision or order under review.2 In the present case, the Order having expired, there is no continuing legal effect of the Order which could be quashed. There is no suggestion that the existing legal rights, duties or liabilities of any person are affected by the past operation of the Order. In those circumstances, the grant of certiorari would lack any utility. Certiorari will not ordinarily be granted if the court considers that it would be a futile remedy.3
9 Even if it is assumed that the Order was infected by jurisdictional error, in that a final order was made without hearing from the applicant as to whether a final order ought to be made, the above considerations lead me to the view that prerogative relief should be refused on discretionary grounds.
10 Thirdly, s 35 of the Magistrates Court Act 2004 (WA)provides that certiorari may not be issued in respect of or directed to a Court officer. Proceedings for judicial review of orders of the Magistrates Court are now to be taken under s 36 of the Magistrates Court Act. I consider below whether the application should be treated as an application under that section. The present point is that s 35 of the Magistrates Court Act precludes the grant of certiorari to quash an order made by a magistrate of that Court.
Declaration
11 Similar considerations arise in relation to the declaratory relief which is claimed in the alternative.
12 It is established that declaratory relief will not be granted if the declaration will produce no foreseeable consequences for the parties: Ainsworth. The decision of the Full Court of the Federal Court in Perder Investments Pty Ltd v Elmer4 illustrates the application of that approach in circumstances with some parallels to the present case. In that case, declaratory relief was refused in circumstances where a licence which was the subject of judicial review had expired.
13 The fact that an alternative remedy by way of appeal to the District Court was available, but was not sought by the applicant, also counts against the exercise of the discretionary power to grant declaratory relief.
14 In my view, it is not appropriate in this case to grant declaratory relief as to the operation of an expired violence restraining order which will have no foreseeable consequence for the existing or future rights of any party, in circumstances where the applicant made a conscious decision not to exercise an available right of appeal against the making of the Order.
Review order
15 I have also considered whether I should treat this application, which was in the form of an application for judicial review under O 56 of the Rules of the Supreme Court 1971 (WA), as an application for a review order under s 36 of the Magistrates Court Act. Treating it as an application under s 36, I would refuse to make a review order.
16 The proper construction of s 36 of the Magistrates Court Act was considered by the Court of Appeal in Rayney v AW.5 In that case,6 at [27], McLure P (with whom other members of the court agreed) identified the purpose of s 36 as being to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts and omissions of officers of the Magistrates Court. She held that the intention is to permit judicial review in those situations in which the specified prerogative writs would have been available, but also to free the courts from the technical requirements associated with those remedies.
17 McLure P also recognised7 that s 36(3), read with s 36(1), provides the source and scope of the court's power to make a review order. The power to make 'any review order that is just' was not seen to empower the court to make a review order if the decision-maker has not made (at least) an arguable reviewable error. The expression was also seen to comprehend a power in appropriate circumstances (such as the availability of an appeal) to decline to make a review order even if the threshold test of an arguable reviewable error has been established.
18 Even assuming that the making of the Order involved an arguable reviewable error, in my opinion this is a case where the court should decline to make a review order by reason of the discretionary considerations which would justify the refusal of certiorari which I have already identified. The fact that the Order has expired and has no foreseeable continuing effect on the legal rights of any party, combined with the fact that the applicant had a right of appeal which he consciously decided not to exercise, leads to the conclusion that a review application must fail on discretionary grounds. In my opinion, in these circumstances the applicant has not established any arguable grounds for the grant of final relief, even if a review order were to be made.
19 In Saldanha v Fujitsu Australia Ltd [No 2]8Corboy J observed that:
There may be circumstances in which it is clear on the application for a review order that the court would not exercise its discretion to grant certiorari even if the grounds for the remedy had been formally established. However, those cases will be rare and the question of whether a court should exercise its discretion to grant relief is one that ordinarily ought to be decided in light of the findings which are finally made by the court.
20 I respectfully agree with that statement of general principle. However, in my view, the present application is one of those cases where it is clear that final relief would be refused on discretionary grounds even if a reviewable error were made out. Treating the present application as made under s 36 of the Magistrates Court Act, I refuse to make a review order in respect of the Order.
Remittal
21 I have also considered whether I should exercise the power in s 36(5)(b) of the Magistrates Court Act to order that the application be treated as an appeal under the Magistrates Court (Civil Proceedings) Act and remit the matter to the District Court. I do not consider that course to be appropriate. The time for commencing such an appeal without the leave of the District Court has long since passed. Given the length of time which has passed, the fact that the Order has expired and the fact that the applicant consciously decided not to institute an appeal in mid-2012, I do not see any basis on which leave to appeal out of time might be granted by the District Court if the matter were remitted to that Court.
Orders
22 In my view any reputational impact of the Order on the applicant does not provide a sufficient basis in the circumstances of this case for the grant of relief by way of judicial review. For the reasons I have explained, the present application must be dismissed.
1Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [128] - [140].
2Ainsworth v Criminal Justice Commission[1992] HCA 10; (1992) 175 CLR 564.
3Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187 [87].
4 [1991] FCA 529; (1991) 31 FCR 201.
5 [2009] WASCA 203.
6Rayney [27].
7Rayney [31].
8 [2011] WASC 360 [116].
3
7
1