Kickett v Starr - [2013] WADC 52

KICKETT -v- STARR [2013] WADC 52

Last Update: 17/04/2013

KICKETT -v- STARR [2013] WADC 52
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 52
Case No:	APP:3/2013	Heard:	15 APRIL 2013
Coram:	DERRICK DCJ	Delivered:	15/04/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: MAGISTRATES COURT OF WESTERN AUSTRALIA Coram: MAGISTRATE RICHARDSON File Number: RO 664 of 2012
Parties:	LEANNE KICKETT LYNETTE STARR
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
Legislation:	District Court Rules 2005 (WA) Interpretation Act 1984 (WA) Magistrates Court (Civil Proceedings) Act 2004 (WA) Restraining Orders Act 1997 (WA)
Case References:	Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Butler v Bennett [2007] WADC 107 Cole 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

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

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

(Page 2)

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)…

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 Kickett v Starr

Details

AGLC: Kickett v Starr [2013] WADC 52
Case: [2013] WADC 52
Decision Date

CaseChat Overview and Summary

The case of Kickett v Starr concerns an appeal against the decision of Magistrate Richardson granting Lynette Starr leave to continue with an application to cancel a final violence restraining order (VRO) issued in favour of Leanne Kickett. The District Court was required to determine whether the magistrate made an error in granting leave to Starr to continue with her application to cancel the final VRO, and whether there were sufficient grounds for granting leave to proceed with the application. The court had to examine the statutory provisions under the Restraining Orders Act 1997 (WA) and consider the submissions made by both parties. The District Court found that the magistrate had indeed erred in granting leave to Starr, as the application was based on hardship, which is not a sufficient ground for such a decision according to the statutory provisions. The court concluded that the appeal must be allowed, and set aside the magistrate's decision, dismissing Starr's application to cancel the final VRO.

Orders