Grossetti v Grossetti
[2011] WADC 78
•23 MAY 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GROSSETTI -v- GROSSETTI [2011] WADC 78
CORAM: SCOTT DCJ
HEARD: 2 MAY 2011
DELIVERED : 23 MAY 2011
FILE NO/S: APP 8 of 2011
BETWEEN: MARK RENATO GROSSETTI
Appellant
AND
SILVANA GROSSETTI
Respondent
Catchwords:
Practice and procedure Whether an appeal lies against interim violence restraining order Appeal from Magistrates Court Appeal out of time Power to extend time
Legislation:
Criminal Appeals Act 2004, s 6, s 7
District Court of Western Australia Act 1969, s 87
District Court Rules 2005, r 3, r 6, r 51, pt 6
Magistrates Court Act 2004, s 36
Magistrates Court (Civil Proceedings) Act 2004, s 6, s 40, pt 7
Restraining Orders Act 1977, s 11A, s 12, s 16(1), s 16(4), s 25(1), s 29(1)(a), s 32, s 64, s 64(2)
Rules of the Supreme Court, O 3, r 5, r 5(1), r 5(2)
Result:
Application for leave to appeal out of time and leave to appeal refused
Representation:
Counsel:
Appellant: Mr B F Stokes
Respondent: Mr G A Ryan
Solicitors:
Appellant: Brians Solicitors
Respondent: Gibson & Gibson
Case(s) referred to in judgment(s):
Defendi v Chartstar Pty Ltd (t/as Coletti Refrigeration and Air Conditioning [2011] WADC 42
Electric Light & Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554
Jackson v Chrisp [2011] WADC 38
Lau v Chua [2009] WADC 172
McKeon v Knapton [2009] WADC 170
Patterson and James v Public Service Board of NSW (1984) 1 NSWLR 237
Re Magistrate G Smith; Ex parte Ives [2010] WASC 249
Seah v Ousby [2011] WADC 54
Wilson v Westpac Banking Corporation [2011] WADC 13
Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80
SCOTT DCJ: On 21 July 2010 the respondent was granted an interim violence restraining order (interim VRO) against the appellant in the Midland Magistrates Court pursuant to the provisions of the Restraining Orders Act 1977 (RO Act).
This is an application for leave to appeal against the grant of the interim VRO and an application to extend time within which to do so.
On the evening of that day the order was served on the appellant who filed an objection to a final order being made.
On 10 December 2010, after a hearing, the interim VRO was cancelled.
The appellant, after the interim VRO was made and served, is alleged to have committed a number of breaches of the terms of that order in respect of which he has been charged with committing those breaches.
In a letter dated 14 January 2011 from the prosecuting division of the Western Australian Police, the solicitor for the appellant was informed that notwithstanding the cancellation of the interim VRO after the hearing on 10 December 2010, the charges preferred against the appellant would proceed.
In that letter the solicitor for the appellant was informed that in the event that this court was to allow the appellant's appeal against the imposition of the interim VRO a submission could then be made with respect to further consideration being given to discontinue the breach charges.
During the hearing of this application, counsel for the appellant informed me from the bar table that he had been informed by an officer of the prosecuting division that if the appeal was successful, the breach charges would be discontinued.
Whether there is an appeal against an interim VRO
Pursuant to s 11A of the RO Act the court, in this case the Magistrates Court, may make a restraining order if it is satisfied that:
(a)the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected,
and that making a violence restraining order is appropriate in the circumstances.
Section 12 sets out the matters to be considered by a court as to whether it ought to make a violence restraining order and the terms under which any such order is to be made.
Pursuant to s 25(1) of the RO Act an application for a violence restraining order may be made in person by the person seeking to be protected and on that application the applicant must indicate whether he or she wishes to have the first hearing of the application held in the absence of the respondent or to proceed directly to a defended hearing.
If the applicant wishes to have the first hearing held in the absence of the respondent, the registrar is to fix a hearing for that purpose and at that hearing the court may make an interim VRO in the absence of the respondent pursuant to s 29(1)(a).
By s 16(1) of the RO Act a violence restraining order comes into force when it is served on the person who is bound by the order. If that order is made under s 29(1)(a) it specifies that it will have a duration of 72 hours or less. If it is not served on the respondent within 24 hours of being made that order lapses.
By s 16(4) an interim VRO remains in force until (inter alia) a final order in respect of the matter comes into force.
By s 32 of the RO Act, if a respondent to the interim VRO objects to the order becoming final the registrar is to fix a hearing at which the court is to make a determination as to whether the interim VRO becomes a final order.
A person aggrieved by a decision of the court exercising its powers under the RO Act has a right of appeal. That right of appeal is contained in s 64 of the RO Act.
Section 64 is, relevantly, in these terms:
64(1)A person aggrieved by the decision of a court –
(a)under s 23(1)(b) or 29(1)(b) to dismiss an application; or
(b)in relation to a final order,
may appeal against that decision in accordance with this section.
(2)If the decision was made by the Magistrates Court, the appeal is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 unless subsection 6(a) applies.
There is no provision in this section for any appeal against the imposition of an interim VRO.
The right of appeal available to a person aggrieved by the decision of the court is statutorily created. The bases upon which a person has an entitlement to appeal against a decision are confined by the provisions of s 64.
In his written submissions, counsel for the appellant says that the right of appeal against an interim VRO can be found in s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (MCCP Act). He submitted that the interim VRO is an order and falls within s 40(1)(a) of that Act.
Section 40(1) of that Act provides:
40(1)A party to a case that is not a minor case may appeal to the District Court against ‑
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
The term 'case' is defined in s (3)(1) of the MCCP Act as 'any proceedings in the court involving or in connection with the court's civil jurisdiction'.
The extent of the Magistrates Court's civil jurisdiction is contained in s 6 of the MCCP Act.
In my view having regard to s 6, proceedings conducted in the Magistrates Court pursuant to the RO Act, are not proceedings in which the Magistrates Court is exercising its civil jurisdiction.
An interim VRO is therefore not an order to which s 40(1)(a) of the MCCP Act refers.
The Magistrates Court is empowered to deal with proceedings pursuant to the RO Act, by s 7A of that Act.
The basis upon which the provisions of pt 7 of the MCCP Act are applicable to an appeal under the RO Act is, by s 64(2), that is the prescribed manner in which any appeal is to be instituted and conducted.
Section 64 of the RO Act creates the statutory entitlement and framework within which a party to a decision of a court made pursuant to that Act can appeal.
In Re Magistrate G Smith; Ex parte Ives [2010] WASC 249 (Hall J) his Honour said:
In any event, it is clear that the legislature has provided a process for appealing restraining orders. It must have been intended that such process would be used in circumstances where it applies. The review order process under s 36 of the Magistrates Court Act ought not be used where a specific appeal process has been provided for in legislation. To allow the review order process to be so used could constitute an abuse of process. That is because it would allow applicants to bypass the jurisdiction and limitations provided for by the legislation in s 64 of the Restraining Orders Act.
Whilst his Honour was considering a different issue, the sentiments expressed by him are applicable to the matter before me.
There being no statutory entitlement to appeal against the grant of an interim VRO, no appeal lies from the decision to grant that order.
Appeal to Supreme Court
In his outline of submissions dated 9 May 2011, counsel for the appellant submitted that in the event that an interim VRO is an order of the Magistrates Court exercising its criminal jurisdiction, then the matter before me ought be referred (I assume meaning remitted) to the Supreme Court as an application for a grant of leave to appeal. The determination which I have made renders this submission nugatory.
In any event a decision of a court of summary jurisdiction, for the purposes of the Criminal Appeals Act 2004 (CAA), is defined in s 6 of that Act and does not, in my view, include an appeal from a decision of a magistrate made pursuant to the RO Act. Consequently s 7 of the CCA does not apply.
To that end, I consider the decision of Hall J in Ives to be compelling. Whilst in that case his Honour was referring to the review order process pursuant to s 36 of the Magistrates Court Act 2004, his Honour was, with respect, correct when he observed that the legislature has provided a process for appealing restraining orders and that it must have intended that such process would be used in the circumstances where it applies.
Without needing to consider whether the appeal instituted in this court could be remitted, any appeal from a decision made by a magistrate pursuant to the RO Act does not lie to the Supreme Court but can only be created by and determined within the framework of s 64 of the RO Act.
Extension of time to appeal
In the event that I am wrong in my determination that no appeal lies in favour of the appellant from the decision of the magistrate to grant the interim VRO, I will deal with the question as to whether this court has the power to extend the time within which any appeal can be instituted by the appellant.
Section 40(3) of the MCCP Act provides:
40(3)The appeal must ‑
(a)be commenced within 21 days after the date of judgment; and
(b)be conducted in accordance with the rules of court made by the District Court.
Rule 51 of the District Court Rules 2005 (DCR) provides:
51(1)An appeal to the Court against an appealable decision must be commenced by filing a notice of appeal at the registry nearest to where the appealable decision was given.
(4)A notice of appeal must be filed and served within 21 days after the date of the appealable decision.
There is no provision in the MCCP Act or the District Court of Western Australia Act 1969 (District Court Act) or the DCR for an extension of the time limited for filing and serving a notice of appeal from a decision in the Magistrates Court.
Section 87 of the District Court Act provides:
87(1)Subject to this Act, the practice and procedure of the Court shall be governed by the rules of court, and until provision is made by rules of court or where no special provision is contained in the rules of court, the rules of court of the Supreme Court for the time being in force, so far as applicable, apply to the Court.
Order 3, r 5 of the Rules of the Supreme Court 1971 (RSC) provides:
(1)The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules or by any judgment, order or direction to do any act in any proceedings.
(2)The court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.
Rule 6 of the DCR provides, relevantly:
(1)The RSC apply to and in respect of any case in the court ….. and
…
(3)If there is a conflict or inconsistency between these rules and the RSC, these rules prevail.
The term 'case' is defined in r 3 of the DCR as 'any proceedings in a court involving or in connection with a court's civil or appellate jurisdiction'.
The rules regulating appeals to this court are contained in pt 6 of the DCR.
In the event that the provisions of the DCR included or incorporated a rule empowering this court to extend the time limit within which an act was required to be done, then notwithstanding the mandatory provisions of s 40(3)(a) of the MCCP Act, a rule in those terms would be likely to empower the court to exercise a discretion as to whether any time limit might be extended (Electric Light & Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554, 599.)
The question then is whether the provisions of s 87 of the District Court Act and/or r 6 of DCR are to be construed as incorporating in the DCR O 3, r 5 of the RSC.
I do not consider that either of those provisions have that effect.
The rules of this court regulate the appellate procedure and do so specifically. The provisions of r 51(4) are mandatory in their plain meaning. To that end, it is not a case where no 'special provision' is contained in the rules of this court (s 87 of the District Court Act). There is a specific provision for the time limited for appeal.
I have not been referred to, nor am I aware of, any Court of Appeal decision with respect to the question whether this court has the power to grant an extension of time within which a party may institute an appeal which is governed by s 40(3) of the MCCP Act and r 51(4) of the DCR.
There has been some conflict between the decisions of judges in this court on this question. To that end I refer to Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80 (Keen DCJ), Lau v Chua [2009] WADC 172 (Eaton DCJ), McKeon v Knapton [2009] WADC 170 (Sweeney DCJ), Wilson v Westpac Banking Corporation [2011] WADC 13 (Braddock DCJ), Defendi v Chartstar Pty Ltd (t/as Coletti Refrigeration and Air Conditioning [2011] WADC 42 (Wager DCJ), Jackson v Chrisp [2011] WADC 38 (Wager DCJ) and Seah v Ousby [2011] WADC 54 (Wager DCJ).
In the matters of Wise and Lau, their Honours took the view that this court did have a discretion to extend time. Their Honours, Sweeney, Braddock and Wager, DCJ have taken the opposing view.
The right of appeal is created by s 64(2) of the RO Act which designates pt 7 of the MCCP Act as the framework within which the appeal must be instituted and conducted.
I am of the view that the decisions of their Honours, Sweeney, Braddock and Wager DCJ are to be preferred. Section 40(3)(a) of the MCCP Act is in mandatory terms, as is r 51(4) of the DCR.
There is support for that view in the Court of Appeal in New South Wales in Patterson and James v Public Service Board of NSW (1984) 1 NSWLR 237, although in that case it must be said that the time limit for appealing in the relevant Act (21 days) and the Supreme Court Rules which were urged to have application (28 days) were different. Nonetheless, the rationale is compelling.
It is in my view impossible to escape the plain and literal meaning of the provisions of the MCCP Act and the DCR to which I have referred. I consider that this court does not have the power to extend time.
I cannot but feel it likely that there may have been a legislative slip. I fail to see any logical reason why this court ought not have a discretion to extend the time limited for appealing in appropriate circumstances.
One can envisage any number of circumstances in which, unless there was a discretion to extend time, injustice would result.
The application will be dismissed.
I will hear the parties on the question of costs.
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