Ives v Heath - [2010] WASC 256

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: IVES -v- HEATH [2010] WASC 256

CORAM: MURRAY J

HEARD: 15 SEPTEMBER 2010

DELIVERED : 17 SEPTEMBER 2010

PUBLISHED : 17 SEPTEMBER 2010

FILE NO/S: CIV 2315 of 2010

MATTER :In the matter of an application under the Magistrates Court Act 2004, s 36, for a review order against Steven Alex Heath, Chief Magistrate of the Magistrates Court at Perth, ex parte Benjamin William Ives, Applicant

BETWEEN: BENJAMIN IVES
Applicant
AND
STEVEN ALEX HEATH
Respondent

Catchwords:

Application for review of magistrate's order - Issue of arrest warrant - Whether an abuse of process - Turns on own facts

Legislation:

Magistrates Court Act 2004 (WA), s 36

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: No appearance

Solicitors:

Applicant: In person
Respondent: No appearance

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Rayney v AW [2009] WASCA 203
Rogers v The Queen (1994) 181 CLR 251
Williams v Spautz (1992) 174 CLR 509

MURRAY J:

The application

This was an application for a review order under the Magistrates Court Act 2004 (WA) (MCA), s 36. By the Rules of the Supreme Court 1971 (WA), O 56A r 2, such an application is made ex parte and must be supported by affidavit.
MCA, s 35, provides that the ancient prerogative writs of mandamus, prohibition and certiorari may not be issued in respect of, or directed to, the Magistrates Court. However, a procedure for review of acts, orders and directions refused, proposed to be done or in fact done by such a court, is provided in MCA, s 36, upon application to this court for a review order directed against the magistrate or court officer involved.
It is evident that a ground for review may not only be a ground upon which, at common law, the remedies of mandamus, prohibition or certiorari might have issued, but may be a ground shorn of the technicalities surrounding those remedies, but which nonetheless challenges the refusal by a magistrate to exercise a power which it was his or her duty to do, or challenges an act, order or direction which is proposed, or which has been done, on the ground of a lack of jurisdiction or power or that such an act would constitute, 'an abuse of process'.
The decision of this application requires no definitive statement about what might constitute an abuse of process within the meaning of s 36. Nonetheless, it is important in this case to remember that this court's power to make a review order, or a final order, under s 36(4) is only enlivened if a ground upon which relief may be granted is established: Rayney v AW [2009] WASCA 203 [27] ‑ [31] (McLure JA, Buss and Newnes JJA agreeing).
As her…

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 Ives v Heath

Details

AGLC: Ives v Heath [2010] WASC 256
Case: [2010] WASC 256
Decision Date: 17 SEPTEMBER 2010

CaseChat Overview and Summary

In Ives v Heath, the applicant sought a review of an order made by a magistrate that resulted in the issuance of an arrest warrant. The applicant, Ives, challenged the legality of the warrant, claiming it was an abuse of process. The court was tasked with determining whether the magistrate's decision to issue the arrest warrant was unreasonable or an abuse of power under the applicable legislation.

The central legal issue was whether the issuance of the arrest warrant constituted an abuse of process. This involved assessing if the warrant was within the scope of the powers conferred by the relevant legislation, and whether it was issued for an improper or collateral purpose. The court considered whether the warrant was a bona fide measure to secure the applicant's attendance at court, or if it was issued unreasonably, to the point of being an abuse of the magistrate's power.

The court found that the magistrate's decision to issue the arrest warrant was not an abuse of process. There was no evidence that the warrant was issued for an improper or collateral purpose. The magistrate had acted within the scope of the powers granted by the Criminal Procedure Act, section 38, and the decision was reasonably open to him given the applicant's deliberate absence from court. The court held that extending the bail to a new court date might not have been effective in ensuring the applicant's attendance, thus justifying the issuance of the arrest warrant.

No review order was made by the court, and the decision to issue the arrest warrant was upheld. The applicant's application for a review of the magistrate's order was dismissed.

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

He argues that the decision to issue the arrest warrant was so unreasonable that no decision‑maker acting in the execution of the power conferred by CPA, s 38, could possibly have properly arrived at the decision. He calls in aid the doctrine of Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. I have read the other cases to which the applicant refers in his outline of submissions, but I will not refer to them because they do not seem to me to be authorities which particularly assist in advancing his argument. The short question, in my view, is whether the decision to issue the arrest warrant may arguably be an abuse of process within the meaning of MCA, s 36. It is unnecessary for present purposes, as I have already said, to arrive at a definitive conclusion about the meaning of the term, but I am inclined to think that it is unnecessary to go to the length of establishing that a purported exercise of power is so unreasonable as to demonstrate that the court officer must have misconceived the nature of the power, or as to demonstrate that there has, in truth, been no exercise of the power conferred at all, although, of course, cases which are arguably of that kind would certainly make it just to make a review order. It seems to me that for it to be just to make a review order, it would be sufficient to make out an arguable case that the act, order or direction proposed or impugned was an abuse of power because, although within power, it was proposed or done for an improper or collateral purpose other than that for which the power was conferred, even though what is proposed to be done or has been done would not be regarded as an improper act in itself. This is the notion of abuse of process developed as a doctrine which may support an application for a stay of proceedings in such cases as Williams v Spautz (1992) 174 CLR 509; Rogers v The Queen (1994) 181 CLR 251; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 and Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328. In this matter, however, there is no evidence of any such arguable case. On the basis that his Honour Chief Magistrate Heath issued the warrant, there is nothing to indicate that it was not a bona fide measure designed to secure the attendance of the applicant upon his breach of bail. It is not to the point to observe that a less intrusive process might have been employed within the ambit of s 38(2) of the CPA. In my opinion, the case presented as one where, in frustration after his matters had not been called and he had not been required to surrender from his bail during the morning, the applicant had made a deliberate decision, with little justification, to absent himself and to decline to appear. In those circumstances it was reasonably open to his Honour the magistrate to consider that merely extending the bail to a new court date would not have been an effective means of securing the attendance of the applicant, resulting in a supportable judgment that the issue of an arrest warrant was required.