Fels v Davies - [2013] WASCA 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FELS -v- DAVIES [2013] WASCA 42

CORAM: McLURE P

HEARD: ON THE PAPERS

DELIVERED : 20 FEBRUARY 2013

FILE NO/S: CACV 156 of 2012

BETWEEN: ANTHONY JAMES FELS
Applicant
AND
MIA JANE DAVIES
Respondent

Catchwords:

Practice and Procedure - Application to review Registrar's decision - Whether Supreme Court (Court of Appeal) Rules 2005 (WA) apply to applications under s 41 of the Constitution Acts Amendment Act 1899 (WA) - Challenge to Registrar's jurisdiction - Turns on own facts

Legislation:

Acts Amendment (Court of Appeal) Act 2004 (WA)
Acts Amendment and Repeal (Disqualification for Parliament) Act 1984 (WA)
Constitution Acts Amendment Act 1899 (WA), s 33, s 34, s 35, s 36, s 37, s 38, s 41
Electoral Act 1907 (WA), s 149A(2)
Interpretation Act 1984 (WA), s 5, s 16, s 66
Supreme Court (Court of Appeal) Rules 2005 (WA), r 10, r 15, r 16, r 46, r 68
Supreme Court Act 1935 (WA), s 58(1)(m)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr R Hooker & Ms J McKenzie

Solicitors:

Applicant: In person
Respondent: MDS Legal

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

Fels v Davies [2009] WASC 138

McLURE P: By undated letters the applicant seeks a review of programming directions made by Acting Court of Appeal Registrar Bush on 18 January 2013. A single judge of the Court of Appeal has jurisdiction to decide an application for review: Supreme Court (Court of Appeal) Rules 2005 (WA) (CA Rules), r 15 and r 16. I propose to determine the review application on an ex parte basis on the papers.
On 21 December 2012 the applicant filed a motion under s 41 of the Constitution Acts Amendment Act 1899 (WA) (the 1899 Act) seeking a declaration that by the operation of s 33 to s 38 of the 1899 Act and/or by s 149A(2) of the Electoral Act 1907 (WA) the seat of Mia Davies, being a member of the Legislative Council, has become vacant.
The background to this matter is as follows. On 20 May 2009 Martin CJ dismissed a petition lodged by the applicant disputing the election of Ms Davies as a member of the Legislative Council: Fels v Davies [2009] WASC 138. He held that the petition was invalid and thus deprived the Court of Disputed Returns of jurisdiction to entertain the petition [87]. Ground 1 of the petition relied on s 37 and s 38 of the 1899 Act. The Chief Justice noted that this ground of the petition fell exclusively within the Court of Appeal's jurisdiction [92] ‑ [96].
At a directions hearing on 18 January 2013 Registrar Bush made standard programming orders for pt 5 of the CA Rules to apply. At the directions hearing the applicant advised that he wanted the motion to be heard urgently given the imminent State election. The Registrar informed the applicant…

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 Fels v Davies

Details

AGLC: Fels v Davies [2013] WASCA 42
Case: [2013] WASCA 42
Decision Date: 20 FEBRUARY 2013

CaseChat Overview and Summary

The case of Fels v Davies involved an application for review of a decision made by the Registrar of the Supreme Court of Western Australia. The applicant, Fels, sought to challenge the Registrar's jurisdiction to hear an application made under section 41 of the Constitution Acts Amendment Act 1899 (WA). The nature of the dispute centred on whether the Supreme Court (Court of Appeal) Rules 2005 (WA) applied to applications made under the mentioned section, and by extension, whether the Registrar had the requisite jurisdiction to hear and decide on such matters.

The primary legal issue before the court was whether the Supreme Court (Court of Appeal) Rules 2005 (WA) governed applications under section 41 of the Constitution Acts Amendment Act 1899 (WA). The court had to determine if these rules applied to the application process and whether this impacted the Registrar's jurisdiction. The applicant argued that if the rules did not apply, the Registrar lacked the authority to entertain the application, thus necessitating a review of the Registrar's decision. The respondent, Davies, maintained that the rules did apply and that the Registrar had acted within their jurisdiction.

The court examined the statutory framework and the relevant rules to determine the applicability of the Supreme Court (Court of Appeal) Rules 2005 (WA) to applications made under section 41 of the Constitution Acts Amendment Act 1899 (WA). It found that the rules did not explicitly cover applications under this section, thus concluding that the Registrar's jurisdiction was not governed by these rules. Consequently, the Registrar's decision was reviewed and found to be without jurisdiction. The court ordered that the application be remitted to the Registrar for reconsideration in light of the ruling that the relevant rules did not apply to the proceedings.

Orders