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
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
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…
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- AGLC
- Grossetti v Grossetti [2011] WADC 78
- Case
- [2011] WADC 78
- Decision Date
CaseChat Overview and Summary
The court considered whether the District Court could exercise a discretion to extend time limits for appeals. The court examined the relevant statutory provisions and rules, including sections 87 of the District Court Act and 40(3)(a) of the Magistrates Court Procedure Act, as well as rule 51(4) of the District Court Rules. The court also reviewed previous decisions from other judges in the District Court that were in conflict on this issue. The court concluded that the statutory and rule provisions were mandatory and did not confer a discretion to extend time, aligning with the decisions of Sweeney, Braddock, and Wager DCJ.
Ultimately, the court held that it did not have the power to extend the time limit for the appeal as it was governed by the mandatory provisions of the relevant statutes and rules. The court found no authority to support the exercise of such a discretion and adhered to the plain meaning of the statutory and rule provisions.
The final order of the court was that the appeal was dismissed due to the appellant's failure to comply with the time limit for instituting the appeal, and no extension of time was granted.
Orders
Orders of the court
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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
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.