Conomy v Cole [No 2] - [2014] WADC 81

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CONOMY -v- COLE [No 2] [2014] WADC 81

CORAM: BRADDOCK DCJ

HEARD: 7 MAY 2014

DELIVERED : 10 JUNE 2014

FILE NO/S: APP 9 of 2014

BETWEEN: JERROD CONOMY
Appellant
AND
STACEY COLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE EDWARDS
File No  :MH/RO 98 of 2013

Catchwords:

Appeal - Violence restraining order - Adjournment of final hearing pending criminal charge - Jurisdiction to appeal - Alleged error by magistrate in considering criminal proceedings

Legislation:

Restraining Orders Act 1997 s 64(1), s 67
Magistrates Court (Civil Proceedings) Act 2004 s 40, s 43, s 50

Result:

Dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Mr M S Hovane

Solicitors:

Appellant: Not applicable
Respondent: Legal Aid WA

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

Kickett v Starr [2013] WADC 52
O'Grady v Northern Queensland Co Ltd [1990] HCA 16

BRADDOCK DCJ:

Introduction

This matter concerns violence restraining order proceedings in the Mandurah Magistrates Court between Mr Jerrod Conomy and Ms Stacey Cole. No final order has yet been made in those proceedings.
This matter came before me on 7 May 2014 by way of Form 6 appeal notice filed by Mr Conomy against a decision of Magistrate Edwards made 15 January 2014. That decision was to adjourn the final hearing of the violence restraining order then listed on 16 January 2014.

Chronology

12 February 2013         Ms Cole applies for a violence restraining order
13 February 2013         Ex parte interim violence restraining order granted
2 May 2013Ms Cole applies for adjournment of proceedings. Application granted. Hearing adjourned to 13 June 2013.
13 June 2013                Ms Cole applies for further adjournment of proceedings. Application granted. Matter listed for mention on 3 July 2013.
3 July 2013Proceedings listed for final hearing on 16 January 2014.
14 August 2013            Criminal charges laid against Mr Conomy by police. Allegation of breach of the interim order on 13 August 2013 and 'stalking'.
3 September 2013        Mr Conomy pleads not guilty to the criminal matters in the Magistrates Court, trial listed 19 March 2014.
6 December 2013         Criminal trial dates adjourned to 14 and 17 July 2014.
15 January 2014           Application of Ms Cole adjourning proceedings then listed for the following day in the Magistrates Court in Mandurah. Relisted set then for 31 July and 4 August 2014.

Appeals and Restraining Orders Act 1997 (ROA)

Generally, an appeal lies to the District Court from a decision of the Magistrates Court in civil proceedings pursuant to s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004. Section 40(4) provides that the District Court must decide the appeal on the material and evidence before the Magistrates Court; and any other evidence that it gives leave to be admitted. Section 50(5) provides that leave may only be given under s 50(4)(b), in exceptional circumstances.
Section 40(1) provides that a party to a case (that is not a minor case) may appeal to…

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 Conomy v Cole [No 2]

Details

AGLC: Conomy v Cole [No 2] [2014] WADC 81
Case: [2014] WADC 81
Decision Date: 10 JUNE 2014

CaseChat Overview and Summary

The appeal concerns a violence restraining order (VRO) made against the respondent, Mr Cole, by a magistrate. The applicant, Mr Conomy, sought to appeal the decision of the magistrate to adjourn the final hearing of the VRO pending the outcome of criminal proceedings against Mr Cole. The appeal was heard by the County Court of Victoria.

The legal issue before the court was whether the magistrate had the jurisdiction to adjourn the final hearing of the VRO pending the outcome of the criminal proceedings against Mr Cole. The court considered whether the magistrate had erred in considering the criminal proceedings when making the decision to adjourn the final hearing. The court also considered whether the adjournment of the final hearing was an appropriate exercise of the magistrate's discretion.

The court found that the magistrate had jurisdiction to adjourn the final hearing of the VRO pending the outcome of the criminal proceedings against Mr Cole. The court held that the magistrate's consideration of the criminal proceedings was not an error, as the court had the power to take into account any relevant matters when making a decision. The court also found that the adjournment of the final hearing was an appropriate exercise of the magistrate's discretion, as it was necessary to ensure that the applicant's rights were protected and that the final hearing could be heard in a fair and efficient manner.

The appeal was dismissed, and the decision of the magistrate to adjourn the final hearing of the VRO was upheld.

Orders