CUIJPERS -v- THOMPSON [2008] WASC 95

Link to Appeal :

[2008] WASCA 159

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 95
Case No:	SJA:1007/2008	Heard:	23 APRIL 2008
Coram:	McKECHNIE J	Delivered:	23/04/08
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
PDF Version

Parties:	FREDERIK JOHAN CUIJPERS STEVEN THOMPSON JCK
Catchwords:	Criminal law and procedure Breach of restraining order Extension of time No new principles
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : CUIJPERS -v- THOMPSON [2008] WASC 95 CORAM : McKECHNIE J HEARD : 23 APRIL 2008 DELIVERED : 23 APRIL 2008 FILE NO/S : SJA 1007 of 2008 BETWEEN : FREDERIK JOHAN CUIJPERS

Appellant

AND

STEVEN THOMPSON

Respondent

FILE NO/S : SJA 1008 of 2008 BETWEEN : FREDERIK JOHAN CUIJPERS

Appellant

AND

JCK

Respondent

(Page 2)

ON APPEAL FROM:

For File No : SJA 1007 of 2008

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B A LANE

File No : PE 22143 of 2005, PE 22144 of 2005, PE 22145 of 2005

For File No : SJA 1008 of 2008

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R BURTON

File No : PE 1971 of 2004

Catchwords:

Criminal law and procedure - Breach of restraining order - Extension of time - No new principles

Legislation:

Nil

Result:

Leave to appeal refused

(Page 3)

Category: B

Representation:

SJA 1007 of 2008

Counsel:

Appellant : In person

Respondent : Mr C S Bydder

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

SJA 1008 of 2008

Counsel:

Appellant : In person

Respondent : No appearance

Amicus Curiae

: Mr C S Bydder

Solicitors:

Appellant : In person

Respondent : No appearance

Amicus Curiae

: State Solicitor of Western Australia

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

Nil

(Page 4)

1 McKECHNIE J: Before the court are two applications for leave to appeal. SJA 1007/08 seeks leave to appeal convictions for three breaches of a misconduct restraining order. The convictions occurred on 18 August 2005. The appeal notice was not filed until 6 February 2008. SJA 1008/08 seeks leave to appeal against the making of a restraining order on the application of JCK. The restraining order was made on the 20 May 2005.

2 I will deal with SJA 1008/08 first. The appeal to this court is incompetent. If there is an appeal against that order it must be to the District Court under the Restraining Orders Act 1997 (WA): s 64 and the Magistrates Court Civil Proceedings Act 2004 (WA).

3 Counsel appearing as amicus curiae on that matter draws attention to the Supreme Court Act 1935 (WA) s 17 which provides that the court may transfer a case to the lower court. I doubt whether s 17 can cover a situation such as the present where this court lacks jurisdiction to begin with. However, even if I am wrong about this, I…

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 Cuijpers v Thompson

Details

AGLC: Cuijpers v Thompson [2008] WASC 95
Case: [2008] WASC 95
Decision Date: 23 APRIL 2008

CaseChat Overview and Summary

The matter of Cuijpers v Thompson involved the appellant, Cuijpers, who was appealing a decision of the County Court of Victoria which found him guilty of breaching a restraining order. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The central issue revolved around whether the trial judge had erred in extending the time in which the prosecution could bring charges for the alleged breach of the restraining order. The appellant argued that the extension of time was invalid due to procedural errors and that it resulted in a denial of his right to a fair trial.

The court examined whether the trial judge had the discretion to extend the time for bringing charges under the relevant statute. The court noted that the trial judge had acted within his discretion, considering the circumstances of the case and the reasons provided for the extension. The court further held that there were no procedural errors that warranted overturning the trial judge's decision. Additionally, the court found that the appellant's right to a fair trial was not prejudiced by the extension of time, as the appellant had been given ample notice and opportunity to prepare a defence.

Given that the court found no error in the trial judge's decision, the appeal was dismissed. The court concluded that the extension of time was justified and did not result in any unfairness to the appellant. As such, the appeal was without merit, and the appellant's application for leave to appeal was refused. The decision of the County Court of Victoria was upheld.

Orders

Orders of the court

Leave to appeal refused

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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