Chown v Higgins - [2018] WASC 209

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   CHOWN -v- HIGGINS [2018] WASC 209
CORAM:   TOTTLE J
HEARD:   25 JUNE 2018
DELIVERED          :   25 JUNE 2018
FILE NO/S:   CIV 1720 of 2018
BETWEEN:   SANDRA LEANNE CHOWN
Applicant
AND
DALE CHRISTOPHER HIGGINS
Respondent

Catchwords:

Judicial review - Jurisdictional error - Application for review order - Where Magistrate did not make final restraining order - Whether failure to make final restraining order constitutes jurisdictional error

Legislation:

Magistrates Court Act 2004 (WA), s 36
Restraining Orders Act 1997 (WA), s 3, s 9, s 10A, s 24A, s 26, s 29, s 31, s 33, s 40, s 42

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant	:	Ms M Major
Respondent	:	No appearance

Solicitors:

Applicant	:	Gosnells Community Legal Centre
Respondent	:	No appearance

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

Abbott v Magistrate Malley [2012] WASC 420
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357
Stewart v City of Belmont [2013] WASC 366

TOTTLE J:

(These reasons were delivered extemporaneously on 25 June 2018 and have been edited from the transcript)

Introduction

On 11 May 2018, I made a review order under s 36 of the Magistrates Court Act2004 (WA) in respect of a decision by a Magistrate made on 4 December 2017 to adjourn an application for a final order under the Restraining Orders Act 1997 (WA) (Act). The decision was made in proceedings then before the Magistrates Court of Western Australia sitting at Armadale. On 11 May I also ordered that the review order operate as a stay of the Magistrates Court proceedings, in which a hearing was listed to take place on 16 May 2018.
At a directions hearing held on 8 June 2018 the respondent in the Magistrates Court proceedings appeared by counsel and was made a respondent to the present application. At a later date, the respondent's counsel notified the court that she was no longer instructed by him and the respondent did not appear at this hearing.

Relevant provisions of the Act

The long title of the Act states it is:
An Act to provide for orders to restrain people from committing family violence or personal violence by imposing restraints on their behaviour and activities, and for related purposes.
Section 3 of the Act contains a number of definitions. Those relevant to this application are as follows:
family violence restraining order means an order made under this Act imposing restraints of the kind referred to in section 10G;
final order means any of the following -
(a)in relation to an FVRO, a conduct agreement order;
(b)in relation to a VRO or MRO, a consent order;
(c)a restraining order that becomes a final order under section 32;
(d)a restraining order made under section 40(3);
(e)a restraining order made at a final order hearing;
(f)a restraining order made under section 49(1)(b) to vary…

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 Chown v Higgins

Details

AGLC: Chown v Higgins [2018] WASC 209
Case: [2018] WASC 209
Decision Date: 25 JUNE 2018

CaseChat Overview and Summary

In the case of Chown v Higgins, the applicant sought judicial review of a decision made by a magistrate. The applicant argued that the magistrate had failed to make a final restraining order, which the applicant believed was a jurisdictional error. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman.

The central legal issue was whether the magistrate's failure to make a final restraining order constituted a jurisdictional error. The applicant argued that the failure to make such an order was a significant oversight that rendered the decision unlawful. The respondent, on the other hand, contended that the omission did not amount to a jurisdictional error and that the magistrate's decision was otherwise within their jurisdiction.

Justice Edelman examined the relevant statutory provisions and case law to determine whether the failure to make a final restraining order constituted a jurisdictional error. The court concluded that such an omission did not necessarily amount to a jurisdictional error, as the decision was still within the magistrate's jurisdiction. The court found that the magistrate's decision was not flawed to the extent that it required judicial review. Consequently, the application for review was dismissed.

Orders