Hart v Watt
[2015] WASC 338
•11 SEPTEMBER 2015
HART -v- WATT [2015] WASC 338
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 338 | |
| Case No: | CIV:2117/2015 | 4 SEPTEMBER 2015 | |
| Coram: | PRITCHARD J | 11/09/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Declarations granted | ||
| B | |||
| PDF Version |
| Parties: | LEONARD HART TANYA ROCHELLE WATT |
Catchwords: | Magistrates Jurisdiction and powers Whether Magistrate acted without jurisdiction Plaintiff required to submit to breath test Plaintiff remanded in custody for purposes of breath test Breath test results admitted into evidence |
Legislation: | Magistrates Court Act 2004 (WA), s 35, s 36 Road Traffic Act 1974 (WA), s 66 Rules of the Supreme Court 1971 (WA), O 56, O 58 |
Case References: | Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 Furesh (as administrator of Intestate Estate of Slipcevich) v Schor [2013] WASCA 231; (2013) 45 WAR 546 Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252 Levy v State of Victoria [1997] HCA 31; (1997) 189 CLR 579 O'Brien v Northern Territory of Australia [No 2] (2003) 173 FLR 455 QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186 Rayney v AW [2009] WASCA 203 Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; (2011) 248 CLR 37 Secretary, Department of Health and Community Services (NT) v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218 Thompson v McIntyre SM [2006] WASC 218 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TANYA ROCHELLE WATT
Defendant
Catchwords:
Magistrates - Jurisdiction and powers - Whether Magistrate acted without jurisdiction - Plaintiff required to submit to breath test - Plaintiff remanded in custody for purposes of breath test - Breath test results admitted into evidence
Legislation:
Magistrates Court Act 2004 (WA), s 35, s 36
Road Traffic Act 1974 (WA), s 66
Rules of the Supreme Court 1971 (WA), O 56, O 58
Result:
Declarations granted
Category: B
Representation:
Counsel:
Plaintiff : Mr D Brunello
Defendant : No appearance
Amicus Curiae : Mr G Tannin SC
Amicus Curiae : Ms K Pedersen
Solicitors:
Plaintiff : Aboriginal Legal Service (WA)
Defendant : No appearance
Amicus Curiae : Attorney General (WA)
Amicus Curiae : State Solicitor's Office (WA)
Cases referred to in judgment:
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
Furesh (as administrator of Intestate Estate of Slipcevich) v Schor [2013] WASCA 231; (2013) 45 WAR 546
Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252
Levy v State of Victoria [1997] HCA 31; (1997) 189 CLR 579
O'Brien v Northern Territory of Australia [No 2] (2003) 173 FLR 455
QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186
Rayney v AW [2009] WASCA 203
Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; (2011) 248 CLR 37
Secretary, Department of Health and Community Services (NT) v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218
Thompson v McIntyre SM [2006] WASC 218
1 PRITCHARD J: Earlier this year, Mr Hart was charged with one count of disorderly behaviour in a public place (the charge). On 3 March 2015, Mr Hart appeared at the Magistrates Court at Narrogin to answer the charge. Initially, Mr Hart sought to enter a plea of guilty to the charge, however upon hearing the statement of material facts read by the prosecutor, he indicated that he wished to enter a plea of not guilty.
2 At that point, the learned Magistrate required Mr Hart to submit to a breath test, apparently for the purpose of analysing his blood alcohol concentration (breath test). She required police officers at the Court to administer the breath test. Upon receiving the results of that breath test, the learned Magistrate refused to accept Mr Hart's plea in respect of the charge and instead remanded him in custody overnight.
3 On 4 March 2015, the charge was again listed before the learned Magistrate. Before he attended at Court, police officers in Narrogin gave Mr Hart another breath test, apparently at the direction of the learned Magistrate. It would seem that, having been satisfied with the results of that breath test, the learned Magistrate put the charge to Mr Hart, who pleaded guilty and was sentenced to a fine of $200.
4 Mr Hart commenced these proceedings by Originating Summons seeking a declaration that the learned Magistrate acted unlawfully and without jurisdiction in directing that Mr Hart be required to submit to the breath tests to determine his blood alcohol concentration, remanding him in custody and depriving him of his liberty.
5 A notice was filed on behalf of the learned Magistrate indicating that she did not intend to appear at the hearing and would abide the decision of the Court. However, counsel on behalf of the Attorney General for Western Australia sought leave to appear as an amicus curiae in the proceedings. In circumstances where there was no contradictor, I was satisfied that the Court would be significantly assisted by the submissions of the amicus, and that participation by the amicus would not result in delay or an increase in costs to Mr Hart1 and accordingly I granted that leave.
6 The Originating Summons was listed for hearing on 4 September 2015. Having read the affidavits filed in support of the Originating Summons, and the helpful outlines of submissions filed on behalf of Mr Hart, and on behalf of the amicus curiae, I was satisfied that in the circumstances, the learned Magistrate acted unlawfully, in that she had no jurisdiction to require Mr Hart to submit to the breath tests; and in that she had no jurisdiction to require the police officers to administer those breath tests and to remand Mr Hart into the custody of the police to the extent that he was remanded for the purpose of submitting to those breath tests; and in so far as she admitted the results of the breath tests into evidence for the purpose of determining whether to accept Mr Hart's plea to the charge. Accordingly I granted a declaration in those terms and indicated that I would provide my reasons for doing so in due course. These are my reasons for granting that declaration.
7 For completeness, I note that counsel for Mr Hart initially sought a declaration that on 3 March 2015 the learned Magistrate acted unlawfully when she remanded Mr Hart in custody overnight, in view of her conclusion (which took into account the result of the breath test) that he was intoxicated and unfit to enter a plea, and that Mr Hart was thereby unlawfully deprived of his liberty. At the conclusion of the hearing, however, counsel for Mr Hart indicated that he no longer pursued a declaration in those terms. It is therefore unnecessary to explore that issue in these reasons.
8 In these reasons for decision I deal with the following matters:
1. The background facts;
2. The Originating Summons;
3. Why Mr Hart had a sufficient interest to warrant the grant of declaratory relief;
4. Why the learned Magistrate had no jurisdiction to require that Mr Hart undergo breath tests, to require the police officers to administer those breath tests, or to remand him into the custody of those officers for that purpose; and
5. The learned Magistrate's use of the results of the breath tests.
1. The background facts
9 The facts were outlined in the affidavit of Kevin George Blurton sworn 7 July 2015 and Michelle Huber sworn 7 July 2015, which annexed transcripts of the hearings before the learned Magistrate on 3 and 4 March 2015 respectively.
10 Mr Blurton is an aboriginal court officer employed by the Aboriginal Legal Service of Western Australia (ALS). He appeared on Mr Hart's behalf at the Magistrates Court on 3 March 2015. Mr Blurton deposed that he has known Mr Hart for many years and knew that he had a long-term alcohol problem.
11 Mr Blurton had a conference with Mr Hart on 3 March 2015 prior to the hearing of the charge. Mr Hart instructed Mr Burton that he wished to plead guilty to the charge, and asked Mr Blurton to appear on his behalf and to make submissions in mitigation in respect of the charge. Mr Blurton deposed that in the course of his discussions with Mr Hart, he smelt alcohol on Mr Hart's breath.2 Mr Blurton deposed that Mr Hart:
was not otherwise exhibiting any other overt sign of being under the influence of alcohol. He conversed coherently with me. He appeared to me to understand the charge, my advice, the proceedings and the effect of his plea.3
12 The transcript of the hearing on 3 March 2015 indicates that Mr Hart told the learned Magistrate that he wished to plead guilty to the charge. Her Honour asked Mr Blurton whether he was satisfied that Mr Hart was in a position to give him clear instructions. Mr Burton advised that he was so satisfied. Mr Blurton deposed in his affidavit that that was a truthful and accurate response.4
13 The prosecutor then read out a statement of material facts. At that point, Mr Hart advised the learned Magistrate that he wished to change his plea to not guilty. Mr Blurton deposed that
[i]n the course of the exchange [Mr Hart] slurred the odd word and, at one time, pointed in the direction of the police prosecutor when making reference to him. Otherwise, as far as I could tell, [Mr Hart] did not appear to be grossly under the influence of alcohol. His speech was otherwise coherent. He was alert. His tone of voice was moderate. He was steady on his feet. His bodily gestures were normal. He was assertive, but not argumentative. [Mr Hart] did nothing that was a violent, aggressive, threatening or intimidating.5
14 According to the transcript, the following exchange then took place:
Her Honour: Mr Blurton, I just need to confirm. Mr Hart hasn't been drinking today, has he?
Blurton, Mr: Quite possibly he has, your Honour.
Her Honour: Have you been drinking today, Mr Hart?
Accused: I had a few.
Her Honour: All right. I'm just going to ask you to blow me a breath test before I take any plea so that I can make sure you're all right to [plead]. So I'm going to ask the - you're to go with the officer. Once you've blown a breath test, you can come back and see me. All right.
…
Her Honour: Okay. Well, in order … for me to decide whether you can - I can take your plea today, I need you to blow a breath test, because I can't take a plea if you're not sober enough to plead.
Accused: No. I'm going to fight - I'm going to fight my case.
Her Honour: Sure. All right. Well, I need you to blow a breath test before you enter a plea today.
Accused: Well, what - then - then what happens after that there?
Her Honour: Well, I need to find out what the reading is, Mr Hart.
Accused: Yes. Why are you worrying about the reading, excuse me? Why are you worrying about the reading when I said I'm going to fight the [charge]?
Her Honour: Because, Mr Hart, I can't take a plea if you're drunk.
Accused: I know what I'm doing.
…
Her Honour: All right. Go and blow a breath test. Once you've finished, come back, and we will see how you go.6
15 Mr Blurton deposed that the charge was then stood down briefly for a breath test to be administered. The transcript indicates that there was then a short adjournment.
16 There was no evidence as to what occurred during that short adjournment. Mr Blurton deposed that Mr Hart was escorted from the court by, and in the custody of, a police officer. Mr Blurton did not see where Mr Hart was taken, and he was not present at the time of the administration of the breath test.7 However, having regard to what next occurred, I infer that a police officer administered a breath test of the kind which is conducted using breath analysis equipment for the purposes of assessing a person's blood alcohol concentration under the Road Traffic Act 1974 (WA). I also infer that the police officer who administered the test advised the learned Magistrate of the results of that test. Unfortunately, no record of that communication appears on the transcript. When the hearing of the charge resumed, the learned Magistrate said:
Now, Mr Blurton, Mr Hart blew a reading of 0.229. My issue is that I owe a duty of care. I can't allow him to go from the court at .229. So I'm happy to adjourn the matter through to tomorrow, but I need to put him in custody until tomorrow. …
So at the moment, he's at risk of anybody running him over even if he's walking down the road. All right. So Mr Hart, look. I can't take a plea from you today. And I'm very concerned, because you've registered .229, which means that you are at risk of all sorts of things happening to you if I let you walk from this courtroom. I can't do it. So I'm going to ask you to go with the officer. You're going to come back in the morning. We're going to blow your breath in the morning to see what you read. All right. And as long as you're reading under .05, we're going to take a plea from you. You can plead not guilty if you want to the disorderly, or you can plead guilty, and we will deal with the matter then.8
17 Mr Blurton deposed that 'at no time prior to the matter being recalled and the Magistrate announcing the result of the breath test and her order that [Mr Hart] be remanded in custody did I understand that bail was at issue'.9
18 Ms Huber appeared for Mr Hart before the Magistrates Court on 4 March 2015. Prior to doing so, she attended on Mr Hart who was in custody at the Narrogin police station, explained the charge to him and read to him the statement of material facts. Mr Hart instructed her that he accepted the facts save for one allegation and that he wished to plead not guilty to the charge because he disputed that particular allegation. Mr Hart also instructed Ms Huber to apply for bail and gave her instructions in relation to the application.
19 When the charge was called on in the Magistrates Court, the following exchange occurred:
Prosecutor: I don't know whether Mr Hart has undergone a breath test this morning, ma'am. I can ask for that to be done.
Her Honour: I had asked already. So I'm assuming that that has happened. Good morning, Mr Hart.
…
Prosecutor: Sorry, your honour. I have just been told that he was breath tested this morning.
Her Honour: Terrific. All right.10
20 Ms Huber deposed that 'prior to appearing for the plaintiff on the morning of 4 March 2015 I was not aware that he had been breath tested by police earlier that morning'.11 However, it is apparent from the transcript that the learned Magistrate required the police to administer a breath test to Mr Hart on the morning of 4 March 2015 prior to his attendance at Court and that they did so. There is nothing in the transcript to indicate what the result of that breath test was.
21 The transcript reveals that the learned Magistrate then read the charge to Mr Hart, asked whether he understood it, and asked how he wished to plead to it. Ms Huber advised the Court that one aspect of the statement of material facts was not accepted by Mr Hart. The prosecutor subsequently indicated that that factual matter would not be relied upon. Ms Huber advised the Court that in those circumstances, Mr Hart would enter a plea of guilty to the charge. The learned Magistrate put the charge to Mr Hart again, and he entered a plea of guilty. Ms Huber then made a plea in mitigation on Mr Hart's behalf.
22 The learned Magistrate then sentenced Mr Hart. She took into account his early plea and the fact that he had spent a night in custody, and imposed a fine of $200 with no order as to costs.
2. The Originating Summons
23 As I have already observed, Mr Hart sought a declaration on the basis that the learned Magistrate acted beyond her jurisdiction and unlawfully. The proceedings were commenced by an Originating Summons. That course appears to have been taken in reliance upon the decision of Blaxell J in Thompson v McIntyre SM,12a case which was very similar to the present case.
24 In Thompsonthe proceedings were commenced by Originating Summons seeking a declaration that the decisions of a Magistrate to remand an accused in custody with an order or direction that he be given a breath test, and that he be further remanded in view of the result of that breath test, were beyond jurisdiction and unlawful. Justice Blaxell noted that the Court had the power to make declarations of right without further orders for consequential relief pursuant to s 25(6) of the Supreme Court Act 1935 (WA) and O 18 r 16 of the Rules of the Supreme Court 1971 (WA) (RSC). His Honour did not expressly address the question whether the validity of the Magistrate's decisions were properly reviewed through an application for a declaration under O 58 RSC.
25 Under O 58 r 1 RSC, civil proceedings between parties, which may be heard in chambers, must be commenced by Originating Summons. Some matters of the kind appropriately dealt with by Originating Summons are referred to in O 58 RSC itself. They include proceedings for the resolution of certain questions in relation to the administration of a deceased estate,13 proceedings where a declaration is sought in respect of the proper construction of written instruments, and of the rights of persons thereunder,14 or of the proper construction of legislation,15 proceedings for the determination of questions arising out of or connected with a contract for the sale of land,16 or proceedings for the resolution of questions relating to the construction, application, modification or extinguishment of an easement or restrictive covenant.17
26 In contrast, the present proceedings were in the nature of an application for judicial review of the various decisions made by the learned Magistrate on 3 and 4 March 2015. Given that that was the case, albeit that the only relief sought was a declaration, the preferable course may have been to commence the proceedings in accordance with O 56 RSC and the procedural framework for review applications which it establishes. After all, O 58 r 1 RSC is subject to the provisions of any Act and of the Rules themselves.18 (The limitations which apply to applications for judicial review of decisions of Magistrates pursuant to s 35 and s 36 of the Magistrates Court 2004 (WA) do not appear to have any application in relation to proceedings for a declaration in respect of a decision of a Magistrate.19) However, it was unnecessary to resolve the question whether an application for review under O 56 would have been the preferable vehicle for an application of the present kind. The issues raised by this proceeding were properly able to be determined without pleadings, and on the basis of the affidavit evidence before the Court, and I was content to proceed in that way, without further cost or delay to all concerned.
3. Why Mr Hart had a sufficient interest to warrant the grant of declaratory relief
27 The Court's jurisdiction to make a declaration is very wide.20 That jurisdiction must nevertheless be exercised within the confines of judicial power. For that reason, the relief must be directed to the determination of a real legal controversy and not merely a hypothetical question, and must be sought by a person who has a real interest in that controversy.21 Furthermore, declaratory relief is a discretionary remedy.22 If the grant of a declaration would have no utility in the circumstances, that would be a factor weighing strongly against the grant of declaratory relief.23
28 I was satisfied that the issues raised by the Originating Summons were not merely hypothetical but pertained to a real legal controversy, and that Mr Hart had a real interest in the determination of those questions, for the following reasons.
29 First, this was a case in which the grant of a writ of certiorari (or equivalent relief under s 36 of the Magistrates Court Act 2004), would have been of no practical benefit. Pursuit of declaratory relief thus represented the only means by which Mr Hart might obtain some redress, by way of recognition that the acts done were beyond the power of the learned Magistrate.24
30 Secondly, requiring Mr Hart to undergo breath tests and remanding him for that purpose interfered with Mr Hart's liberty and his right to bodily integrity. Those rights, particularly the right to liberty, are rights which the law has always jealously guarded, given their fundamental importance.25 The grant of a declaration in this case was warranted given the importance of those rights.
31 Thirdly, the grant of a declaration in the present circumstances constituted a means to draw to the attention of the learned Magistrate the necessity 'to observe in future the rights and obligations which the application of the law to the established facts has shown to exist'.26
32 For completeness, I note that in order to demonstrate the utility of declaratory relief, Mr Hart's counsel, Mr Brunello, sought to rely on an affidavit he swore on 31 August 2015, a copy of which was provided to the Court but not filed. In that affidavit, Mr Brunello deposed to the fact that the learned Magistrate has recently required two other persons to undergo breath tests in similar circumstances to those in this case, and that the ALS has instructions to pursue applications for declaratory relief on behalf of those persons, but has not yet been able to file those applications. For the reasons I have already outlined, I was satisfied that the grant of a declaration was appropriate in the present case, without the need to rely upon the contents of Mr Brunello's affidavit.
4. Why the learned Magistrate had no jurisdiction to require that Mr Hart undergo breath tests, to require the police officers to administer those breath tests, or to remand him into the custody of those officers for that purpose
33 There is no doubt that in the circumstances of this case, the learned Magistrate did not have the power to require Mr Hart to undergo breath tests on 3 and 4 March 2015, to require police officers to administer those tests and to remand him into the custody of the police on 3 March 2015 for the purpose of conducting a breath test.
34 As I have already noted, the right to liberty and the right to bodily integrity or autonomy are two of the most fundamental rights recognised by the common law.27 A requirement for a person to undergo a blood test, or to provide a mouth swab, constitutes an interference with that person's right to bodily integrity.28 In my view, a requirement that a person submit to a breath test, which requires a person to breathe into breath-analysing apparatus, similarly constitutes an interference with that person's right to bodily integrity.
35 An incursion on the right of a person to bodily integrity, without their consent, is unlawful in the absence of statutory authority. Such statutory authority exists in certain circumstances. For example, a police officer has the power to require the driver of a motor vehicle to provide a sample of his or her breath for testing, but only in the circumstances set out in s 66 of the Road Traffic Act 1974 (WA). However, a Magistrate has no statutory authority to require a person to submit to a breath test to analyse his or her blood alcohol concentration for the purpose of determining that person's fitness to enter a plea to a charge.29
36 A Magistrate also has no power to remand an accused person in custody for the purpose of undergoing breath analysis to ascertain their blood alcohol concentration.30 Remanding Mr Hart into the custody of the police for the purpose of conducting the breath test on 3 March 2015 amounted to an interference with his right to liberty, without authority.
37 These principles, and their importance, were referred to by Blaxell J in a virtually identical context to this case, in Thompson. His Honour's observations, with which I respectfully agree, bear repeating:
Put simply (and in the context of the present case) the rule of law means that every person in the community has equal standing before the law, with the same basic rights and obligations as everyone else.
Perhaps the most important basic right is that a person's freedom of action and liberty should not be interfered with except when permitted by law. This right is possessed by every individual in the community including defendants to criminal charges when appearing in court. …
The rule of law also means that no one is above the law, not even Judges or Magistrates while sitting in court. Judicial officers have very significant if not awesome powers over people appearing before them, but those powers are not unlimited and can only be exercised in accordance with the law. For this reason, when Judges and Magistrates are appointed they are required to make an oath or affirmation to 'do right to all manner of people, according to law, without fear or favour, affection or ill will'.
As can be seen from the wording of this oath, a Judge or Magistrate is not free to do justice according to personal whim or fancy, or in accordance with idiosyncratic notions of what is right. The obligation is to do right according to law. This obligation lies at the heart of our system of justice because it ensures that every person subject to judicial decision-making is dealt with equitably and fairly, and not on an arbitrary or ad hoc basis.31
38 It was for these reasons that I was satisfied that this was a proper case for a declaration that it was unlawful (in the sense that the learned Magistrate acted outside her power) to require Mr Hart to undergo the breath tests on 3 and 4 March 2015, to require police officers to administer those breath tests, and to remand Mr Hart into the custody of the police on 3 March 2015 for the purpose of administering a breath test.
5. The learned Magistrate's use of the results of the breath tests
39 The absence of any statutory power for the learned Magistrate to require Mr Hart to undergo a breath test led to further difficulties concerning the use which was made by the learned Magistrate of the test results.
40 The learned Magistrate did not formally admit into evidence the results of the breath test, but she nevertheless clearly received evidence of the results of the tests. It is apparent from the transcript of the hearing on 3 March 2015 that the learned Magistrate relied upon the result of the blood test as the basis for a finding that Mr Hart was not fit to enter a plea of guilty on that day. Similarly, although the transcript from 4 March 2015 does not indicate the result of the breath test administered to Mr Hart that morning, it is apparent that the learned Magistrate took into account the result of that test, and concluded that Mr Hart was fit to enter a plea to the charge on that date.
41 In my respectful view, the course adopted by the learned Magistrate resulted in her falling into error in a number of other respects. By way of example, by proceeding as she did, the learned Magistrate denied procedural fairness to Mr Hart: evidence of the breath test results was not properly presented in open court, and Mr Hart's representative was not given an opportunity to be heard in relation to its use, or to test the evidence, or to make submissions about it. Further, the results of the blood tests clearly constituted evidence which had been unlawfully obtained, and evidence of those results was therefore arguably (indeed, likely to be) inadmissible.32
42 In addition, without evidence of the basis on which the breath tests were conducted, the operation of the analysing equipment used to conduct the tests and the accuracy of the test results, and most importantly, appropriately qualified expert evidence as to what the results of the breath tests indicated about Mr Hart's ability to understand the charge and the consequences of his plea to the charge,33 the results of the breath tests constituted hearsay and unqualified opinion evidence, which was inadmissible for those reasons as well.
43 It is appropriate to make a final observation. In this case, the learned Magistrate was clearly concerned about whether Mr Hart was fit to enter a plea to the charge, and thus whether it would be unfair to him to take his plea in those circumstances. Similarly, the learned Magistrate's decision to remand Mr Hart in custody overnight appears to have been motivated by a concern about his welfare if he was free to leave the Court in what the learned Magistrate believed to be a state of considerable intoxication. But such concerns did not justify the pursuit of a course of action in which the Court had no power to engage, and which resulted in an interference with Mr Hart's rights of liberty and bodily integrity. Other lawful courses of action - such as standing the charge down until later in the list that day, to permit Mr Hart the opportunity to recover before dealing with the charge - appear to have been open to the learned Magistrate, and in my respectful opinion, should have been pursued instead.
1 Cf Levy v State of Victoria[1997] HCA 31; (1997) 189 CLR 579, 604 - 605 (Brennan CJ); Roadshow Films Pty Ltd v iiNet Ltd[2011] HCA 54; (2011) 248 CLR 37 [4] (the Court).
2 Blurton affidavit [11].
3 Blurton affidavit [11].
4 Blurton affidavit [13].
5 Blurton affidavit [15].
6 ts (3 March 2015) 3 - 5.
7 Blurton affidavit [17].
8 ts (3 March 2015) 5 - 6.
9 Blurton affidavit [19].
10 ts (4 March 2015) 9.
11 Huber affidavit [14].
12Thompson v McIntyre SM[2006] WASC 218.
13Rules of the Supreme Court 1971 (WA) O 58 Div 2.
14Rules of the Supreme Court 1971 (WA) O 58 r 10.
15Rules of the Supreme Court 1971 (WA) O 58 r 11.
16Rules of the Supreme Court 1971 (WA) O 58 r 13.
17Rules of the Supreme Court 1971 (WA) O 58 r 30; see also Transfer of Land Act 1893 (WA) s 129C.
18Rules of the Supreme Court 1971 (WA) O 58 r 1.
19 See Rayney v AW [2009] WASCA 203 [21] - [34] (McLure P).
20Forster v Jododex Australia Pty Ltd[1972] HCA 61; (1972) 127 CLR 421, 435 (Gibbs J).
21Ainsworth v Criminal Justice Commission[1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey & Gaudron JJ).
22Ainsworth v Criminal Justice Commission[1992] HCA 10; (1992) 175 CLR 564, 581 - 582 (Mason CJ, Dawson, Toohey & Gaudron JJ).
23QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186 [26] - [33] (McLure P), [170] (Murphy JA).
24O'Brien v Northern Territory of Australia [No 2](2003) 173 FLR 455 [51] (Mildren J).
25 See, eg, Secretary, Department of Health and Community Services (NT) v JWB & SMB[1992] HCA 15; (1992) 175 CLR 218, 233 (Mason CJ, Dawson, Toohey & Gaudron JJ), 309 - 310 (McHugh J).
26O'Brien v Northern Territory of Australia [No 2](2003) 173 FLR 455 [42] (Martin CJ).
27 See, eg, Secretary, Department of Health and Community Services (NT) v JWB & SMB[1992] HCA 15; (1992) 175 CLR 218, 233 (Mason CJ, Dawson, Toohey & Gaudron JJ), 309 - 310 (McHugh J).
28Furesh (as administrator of Intestate Estate of Slipcevich) v Schor[2013] WASCA 231; (2013) 45 WAR 546 [4] - [5] (Pullin JA), [50] (Newnes JA), [99] - [101] (Murphy JA).
29Thompson v McIntyre SM[2006] WASC 218 [23].
30Thompson v McIntyre SM[2006] WASC 218 [25] - [26].
31Thompson v McIntyre SM[2006] WASC 218, [18] - [21].
32 See Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252 [50] (French CJ, Crennan, Kiefel, Bell & Keane JJ), citing Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
33 Cf Criminal Procedure Act 2004 (WA) s 59(2)(b), s 129(2)(b).
0
13
3