| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KICKETT -v- STARR [2013] WADC 52 CORAM : DERRICK DCJ HEARD : 15 APRIL 2013 DELIVERED : 15 APRIL 2013 FILE NO/S : APP 3 of 2013 BETWEEN : LEANNE KICKETT Appellant
AND
LYNETTE STARR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE RICHARDSON File No : RO 664 of 2012 Catchwords: Appeal - Violence restraining orders - Whether magistrate made error in granting leave to person bound by final violence restraining order to continue with application to cancel order - Whether sufficient grounds for granting leave to continue with application to cancel final violence restraining order
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Legislation: District Court Rules 2005 (WA)
Interpretation Act 1984 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA) Result: Appeal allowed
Representation: Counsel:
Appellant : Ms A V Barter
Respondent : In person
Solicitors:
Appellant : Scales Community Legal Centre
Respondent : Not applicable
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Butler v Bennett [2007] WADC 107
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Ex parte West Australian Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177
Hoskins v Armstrong [2008] WADC 168
O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Regan v Gibson [2010] WADC 144
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1 DERRICK DCJ: [This judgment was delivered extemporaneously and has been edited from the transcript].
2 The appellant appeals against the decision of her Honour Magistrate Richardson granting the respondent leave to continue her application for an order cancelling a violence restraining order (VRO) issued against the respondent in favour of the appellant.
Background to decision under appeal 3 On or about 24 September 2012 the appellant made an application to the Rockingham Magistrates Court (the court) for a VRO to be made against the respondent for the appellant's benefit. The application was made under s 25 of the Restraining Orders Act 1997 (WA) (the Act). Pursuant to s 26(1) of the Act the appellant chose to have the first hearing of the application held in the absence of the respondent. In light of this election the registrar of the court, acting pursuant to s 26(2), listed the first hearing for 26 September 2012. 4 At the hearing on 26 September 2012 the court made an interim VRO against the respondent for the appellant's benefit pursuant to s 29(1)(a) of the Act. The interim VRO was subsequently served on the respondent pursuant to s 30 of the Act. 5 On or about 28 September 2012 the respondent, acting pursuant to s 31 and s 33(1) of the Act, returned her endorsement copy of the interim VRO to the court indicating that she objected to the interim order becoming final. The matter was then listed by the registrar of the court for a hearing on 19 October 2012. 6 The notifications of the hearing to be held on 19 October 2012 that were issued by the court to the appellant and the respondent, as well as the summons that was issued by the court to the respondent requiring her to attend at the hearing, referred to the matter having been set down for a final order hearing. That is, the documents stated that the 19 October 2012 hearing was a final order hearing. However, rather confusingly each of the documents was also stamped in the bottom right hand corner with the following: Please Note: This Hearing Is A 'MENTION ONLY' (YOUR ATTENDANCE IS REQUIRED). 7 During the course of the hearing of the appeal I was told by the appellant's counsel that the practice of at least the regional magistrates courts in this State in cases such as the present where an interim VRO is (Page 4)
made in the absence of the person bound by the order and the person bound by the order indicates that he or she objects to the order becoming final, is to list the matter for a mention hearing, to inquire at that mention hearing if the parties have resolved their differences, and if they have not to then list the matter for a final order hearing. While I can appreciate the pragmatism of this approach, I doubt that it is authorised by the relevant provisions of the Act. Under s 29 of the Act the court, at a hearing fixed under s 26(2), may make a VRO (which by definition includes an interim VRO), may dismiss the application, may adjourn the matter to a mention hearing or may at the request of the applicant discontinue the application. Thus if a magistrates court makes a VRO at a hearing fixed under s 26(2), which is what the court did in this case, it seems to me to be strongly arguable that it does not under s 29(1) have the power to also adjourn the matter to a mention hearing: Interpretation Act 1984 (WA), s 17. Rather, if a VRO is made the registrar is required by s 30 to prepare and serve the VRO made under s 29(1)(a) and the procedure provided for in pt 4 of the Act comes into operation. It therefore seems to me that so far as the present case is concerned the better view of the matter is that whatever label the court may have ascribed to the hearing which was listed for 19 October 2012, it was not a mention hearing fixed under s 29(1)(c) of the Act or a mention hearing within the definition given to that term by s 3 of the Act. Rather, it was a final order hearing fixed by the registrar of the court pursuant to s 33(1) of the Act. However, given that it is not necessary for me to express a definitive conclusion on the point in order to deal with the appeal, and given that I have not heard any detailed submissions on the point, I will refrain from expressing a definitive conclusion in relation to this issue. 8 On 19 October 2012 the appellant appeared at the hearing which had been listed for that date. The respondent did not appear. The court, being satisfied that the respondent had been served with a summons requiring her to attend the hearing, proceeded to hear the matter in the absence of the respondent and ultimately made a final VRO against the respondent for the appellant's benefit which was in the same terms as the interim VRO. The final VRO was subsequently served on the respondent. 9 It is not clear from the available material whether the magistrate who presided over the hearing on 19 October 2012 considered herself at the time of the hearing to be conducting the hearing under s 40 of the Act, which deals with mention hearings, or s 42 of the Act which deals with final order hearings. Either way her Honour did, being satisfied that the respondent had been served with a summons requiring her appearance, (Page 5)
have the power to deal with the matter in the respondent's absence and to make the interim VRO final: the Act, s 40(2), s 40(3), s 42(2)(a)(i), s 42(3). 10 On 25 October 2012 the respondent filed with the court an application for the final VRO made against her to be 'turned over'. The application did not specify which section of the Act it was being made under and was not in any form prescribed by the Act. The application was supported by an affidavit sworn by the respondent on 25 October 2012 in which she stated that she wanted her application to be heard because she 'did not receive any confirmation in regards to this matter until the day it was to be heard'. 11 The respondent's application was listed for hearing on 21 November 2012. 12 On 21 November 2012 the respondent's application was heard. I have been told by counsel for the appellant that the application was treated by the court and the parties as an application made under s 43A of the Act to set aside the VRO, and that the appellant opposed the application on the grounds that the court did not have the power to deal with the application because the final VRO had been made under s 40(3) of the Act and not s 42: the Act, s 43A(2)(b). For reasons which I have already stated in relation to the question whether the hearing on 19 October 2012 was a mention hearing or a final order hearing, I have doubts about the correctness of the proposition that the final VRO was made under s 40(3). Once again, however, it is not necessary for me to express a concluded view on this issue in order to deal with the appeal. 13 On 4 December 2012 the court dismissed the respondent's application to set aside the final VRO. 14 On the same date the respondent filed an application pursuant to s 45(1)(c) of the Act to cancel the final VRO made against her. The respondent's stated grounds for the application were as follows: I did not receiver [sic] court letter advising me of court date until the 19th Oct 2012 the day I was supposed to be in court. I do not even know this person. 15 Pursuant to s 46(1) of the Act the registrar of the court fixed 14 December 2012 as the date on which the respondent's application for a grant of leave to continue her application to cancel the final VRO was to be heard. (Page 6)
Appealed decision 16 On 14 December 2012 the hearing of the respondent's application for leave to continue with her application to cancel the final VRO was heard in the appellant's absence as required by s 46(2). The respondent appeared in person. 17 At the commencement of the hearing the magistrate informed the respondent that 'in terms of an application to cancel a restraining order' she needed to convince the court that she should be given leave to proceed with the application. The magistrate then asked the respondent what she wanted to say in support of her application. The respondent then told the magistrate that she had 'never set eyes' on the appellant until the day that she had come to court. She said that she was married to the appellant's ex-husband and that all through the period that she had been with the appellant's ex-husband she had never had contact with the appellant and had never set eyes on the appellant until the day she came to court, other than on two occasions, namely 'last year at Christmas time and this year in September'. She said that the appellant does not interest her and that she has no reason to speak to the appellant. Having been provided with this information the magistrate asked the respondent if the VRO was causing her hardship. In response to this question the respondent said: Your Honour, I - the reason she's getting it is for when we have family things, she doesn't want me to attend, to have any contact with the grandchildren, and that's just her childish behaviour but as I said, I don't know the woman. Like I said, the first time I set eyes on her was in the courtroom when we were here. 18 After the respondent had given the above answer the magistrate told the respondent that she had to be satisfied that the VRO was causing the respondent some hardship. The respondent then told the magistrate that, 'It just stops me from attending any family things or anything like that …'. After this statement the following exchange occurred between the magistrate and the respondent: HER HONOUR: So it is causing you a hardship in that sense? STARR, MS: Yes. HER HONOUR: So you can't attend with your husband --- STARR, MS: That's correct. HER HONOUR: --- if his former wife is there? (Page 7)
STARR, MS: That's right. HER HONOUR: So that means various family function and things --- STARR, MS: That's correct. HER HONOUR: --- where children are involved, you can't be there. STARR, MS: Yeah. 19 Following this exchange the magistrate stated that she was satisfied that leave should be granted to the respondent to proceed with her application to cancel the final VRO. Her Honour adjourned the matter through to a mention hearing on 11 January 2013.
Notice of appeal 20 On 24 December 2012 the appellant filed her notice of appeal dated 19 December 2012 against the decision of the magistrate. The ground of appeal as stated in the notice is that the magistrate erred in finding that there were 'grounds under s 46(4)(a) Restraining Orders Act 1997 for the Respondent to continue her application to cancel the violence restraining order'.
Statutory provisions governing appeal 21 Pursuant to s 64(1)(b) and s 64(2) of the Act, a person aggrieved by the decision of a court 'in relation to a final order' may appeal against the decision in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCPA). A 'final order', so far as is presently relevant, is an order for a final VRO made under s 40(3) at a mention hearing or under s 42(2) at a final order hearing: the Act, s 3. 22 Section 40(3) of the MCCPA, which appears within pt 7, provides that the appeal must be conducted in accordance with the District Court Rules 2005 (WA) (the DCR). Section 40(4) of the MCCPA provides that the District Court must decide the appeal on the material and the evidence that was before the Magistrates Court and on any other evidence that it gives leave to be admitted. Section 40(5) provides that leave may only be given to admit additional evidence on the appeal in exceptional circumstances. 23 Rule 50(1) of the DCR provides that an appeal to the District Court must be by way of reconsideration of the evidence that was before the primary court unless the parties otherwise agree. Rule 50(2) of the DCR provides that at the hearing of an appeal a party must not adduce evidence (Page 8)
that was not adduced at the primary court except with the leave of the District Court. 24 It is clear from s 40(4) of the MCCPA and r 50(1) and r 50(2) of the DCR that an appeal from a decision of a magistrate to the District Court is by way of re-hearing. The ability of the District Court to receive and admit new evidence does not render the appeal a hearing de novo: Butler v Bennett [2007] WADC 107 [10]; Hoskins v Armstrong [2008] WADC 168 [3]; Regan v Gibson [2010] WADC 144 [7]. 25 Given that the appeal is by way of re-hearing it is necessary for the appellant to demonstrate error in the court below: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 [14]; (2000) 203 CLR 194, 203 - 204. Thus the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40 [23]; (2000) 203 CLR 172, 180 - 181. 26 The orders that the District Court may make on the appeal if error is demonstrated are set out in s 43 of the MCCPA.
Right to appeal 27 As I have already indicated, under s 64(1)(b) of the Act a 'person aggrieved' by the decision of a court 'in relation to' a final VRO may appeal against the decision. 28 There is no question that the appellant is a 'person aggrieved' by the decision of the magistrate to grant the respondent leave to continue with her application to cancel the final VRO. However, was she a person aggrieved by the decision of a court 'in relation to' a final VRO? 29 The starting point for any process of construction of a statutory provision is the language of the provision viewed in the context of the statute as a whole having regard to the general purpose and policy of legislation: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Ex parte West Australian Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177 [51]. 30 The words 'in relation to' are of wide import. They ordinarily denote a relationship or connection, whether direct or indirect, between the two subject matters to which the words refer, in this case the decision of the court and the final VRO: O'Grady v Northern Queensland Co Ltd (Page 9)
[1990] HCA 16; (1990) 169 CLR 356, 374. Moreover, I do not think that there is anything in the provisions of the Act which indicate that the words 'in relation to' as used in s 64(1)(b) are to be given anything other than their ordinary generally accepted meaning. 31 In my view the decision of the magistrate to grant the respondent leave to continue with her application to cancel the final VRO was a decision 'in relation to' a final VRO; the decision was clearly related to, or connected with, the final VRO. It follows that in my opinion the appellant does have the right to appeal against the magistrate's decision.
Submissions of the parties 32 The appellant's argument on the appeal is founded on the wording of s 46(4) of the Act. Section 46(4) provides: 33 The appellant submits that her Honour granted the respondent's application on the basis of hardship and that under s 46(4)(a) hardship can only provide a basis for granting leave to continue with an application to cancel an interim VRO. The appellant submits that her Honour did not consider whether there were grounds under s 46(4)(a)(i) or s 46(4)(a)(ii) for the respondent to apply to cancel the final VRO made for the appellant's benefit. The appellant therefore contends that the magistrate (Page 10)
erred in law and fact in granting to the respondent under s 46(4)(a) leave to continue her application to cancel the final VRO. 34 The respondent, who appeared in person at the hearing of the appeal, submits, that the final VRO made against her has caused, and continues to cause her hardship and that the appeal should therefore be dismissed.
Decision 35 I accept the appellant's submissions. 36 The respondent's application was to cancel a final VRO. Accordingly, by reason of s 46(4)(a) the magistrate could only grant leave to the respondent to continue her application to cancel the final VRO if she was satisfied of either of the matters specified in s 46(4)(a)(i) or s 46(4)(a)(ii). The issue of any hardship being caused to the respondent by reason of the existence of the final VRO was irrelevant to the determination of the respondent's application. 37 The affidavit sworn by the respondent on 25 October 2012, even assuming it was on the court file and was before the magistrate at the time of the hearing of the respondent's application, did not address either of the matters specified in s 46(4)(a)(i) or s 46(4)(a)(ii). Nor did the statements made by the respondent from the bar table to the effect that she did not know the appellant, did not want anything to do with the appellant and was, by reason of the existence of the final VRO, being prevented from attending family functions with her husband who was the appellant's ex-husband. Accordingly, there was no evidence before the magistrate which was capable of satisfying her Honour of either of the matters specified in s 46(4)(a)(i) or s 46(4)(a)(ii). It follows, with respect, that her Honour made an error in granting the respondent leave to continue her application to cancel the final VRO. The existence of any hardship caused to the respondent by reason of the existence of the final VRO did not provide a basis for granting the respondent's application. 38 For the reasons I have stated the appeal must be allowed. The orders that I will make are as follows: (Page 11)
respondent in favour of the appellant on 19 October 2012 is set aside; and 3. The respondent's application to cancel the final VRO made against the respondent in favour of the appellant on 19 October 2012 is dismissed.
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