Ives v Magistrate G Smith
[2011] WASCA 29
•28 JANUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: IVES -v- MAGISTRATE G SMITH [2011] WASCA 29
CORAM: PULLIN JA
MURPHY JA
HEARD: 28 JANUARY 2011
DELIVERED : 28 JANUARY 2011
FILE NO/S: CACV 99 of 2010
BETWEEN: BENJAMIN IVES
Appellant
AND
MAGISTRATE G SMITH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G SMITH
File No :PE 2670 of 2008
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HALL J
Citation :RE MAGISTRATE G SMITH; EX PARTE IVES [2010] WASC 249
File No :CIV 2288 of 2010
Catchwords:
Appeal - Practice and procedure - Appeal dismissed for not complying with rules - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: No appearance
Respondent: No appearance
Case(s) referred to in judgment(s):
Re Magistrate G Smith; Ex parte Ives [2010] WASC 249
PULLIN JA: The appeal has been listed for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) for failure to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA). The background is that the respondent granted a restraining order in the Perth Magistrates Court pursuant to the Restraining Orders Act 1987 (WA).
The appellant applied under s 36 of the Magistrates Court Act 2004 (WA) for an review order. This came before Hall J. His Honour held that if the appellant was aggrieved by the order which had been made by the magistrate then the appropriate course to follow was to appeal under s 64 of the Restraining Orders Act 1987 (WA). Hall J held that the application for a review should be treated as if it were an appeal under the Magistrates Court (Civil Proceedings) Act 2004 (WA) and that it be remitted to the District Court for hearing. Hall J's reasons are set out in Re Magistrate G Smith; Ex parte Ives [2010] WASC 249.
On 19 September 2010, the appellant appealed against Hall J's decision. The appellant's case was due to be filed and served by 25 October 2010 and the appellant was advised of this by letter dated 27 October 2010 from the court support officer of the Court of Appeal.
Nothing has happened since and on 17 December 2010 the registrar issued a notice requiring the appellant to attend to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) for failure to comply with the rules which required the filing of the appellant's case by 25 October 2010: see r 32(1) and (2). In the circumstances, the appeal should be dismissed and that is the order that I would make.
MURPHY JA: I agree with Pullin JA.
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