McColl JA at [1], Barrett JA at [83], Gleeson JA at [84]
Decision:
(1)Extend the time for commencing the proceedings for judicial review of the District Court decision up to and including 18 March 2014. (2)Remit the applicant’s appeal against the orders of Magistrate Linden to the District Court for hearing and determination according to law. (3)No order as to the costs of the proceedings in this Court
Catchwords:
ADMINISTRATIVE LAW – judicial review – Local Court grants application for apprehended personal violence order – defendant unsuccessful in appeal to District Court – function of District Court on appeal by way of rehearing from making apprehended personal violence order – ADMINISTRATIVE LAW – judicial review – jurisdictional error – whether District Court misapprehended scope of jurisdiction – whether District Court determined whether statutory preconditions for making apprehended personal violence order were satisfied – ADMINISTRATIVE LAW – judicial review – jurisdictional error – whether Court of Appeal can review judgments of both District and Local Courts –
[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.
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AGLC
Dyason v Butterworth [2015] NSWCA 52
Case
[2015] NSWCA 52
Decision Date
CaseChat Overview and Summary
Dyason v Butterworth concerned an application for judicial review of a decision of the District Court of New South Wales, which had dismissed an appeal against an apprehended personal violence order made by the Local Court. The applicant, the defendant in the apprehended violence proceedings, sought to challenge the District Court's dismissal of his appeal.
The central legal issues before the Court of Appeal were whether the District Court, in hearing an appeal by way of rehearing from an apprehended personal violence order, had misapprehended the scope of its jurisdiction. Specifically, the court was asked to consider whether the District Court had failed to properly determine whether the statutory preconditions for the making of an apprehended personal violence order had been satisfied by the evidence before the Local Court. The Court of Appeal also considered its own jurisdiction to review judgments of both the District and Local Courts in this context.
The Court of Appeal found that the District Court had erred in its approach to the appeal. It held that the District Court, when conducting a rehearing, was required to make its own findings of fact and apply the relevant legal tests to those findings, rather than simply reviewing the Local Court's decision. The court determined that the District Court had misapprehended its appellate function by failing to undertake a full rehearing and determine the statutory preconditions for the apprehended personal violence order itself.
Consequently, the Court of Appeal extended the time for the judicial review proceedings and remitted the applicant's appeal against the original apprehended personal violence order back to the District Court for a proper hearing and determination according to law. No order was made as to the costs of the proceedings in the Court of Appeal.
Orders
Orders of the court
(1)Extend the time for commencing the proceedings for judicial review of the District Court decision up to and including 18 March 2014.
(2)Remit the applicant’s appeal against the orders of Magistrate Linden to the District Court for hearing and determination according to law.
(3)No order as to the costs of the proceedings in this Court