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KSJ v GJA

KSJ v GJA

Case [2020] WADC 96 1 July 2020

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KSJ -v- GJA [2020] WADC 96
CORAM:   BIRMINGHAM QC DCJ
HEARD:   20 APRIL, 14 & 19 MAY, 9 JUNE 2020
DELIVERED          :   1 JULY 2020
FILE NO/S:   APP 89 of 2019
BETWEEN:   KSJ
Appellant
AND
GJA
Respondent

ON APPEAL FROM:
Jurisdiction              :   PERTH MAGISTRATES COURT
Coram:   MAGISTRATE YOUNG
File Number            :   MC/PER/CIV/RO/1962/2019

Catchwords:

Appeal - Restraining Orders Act 1997 (WA) - Interlocutory decision - Setting aside summons to produce - Legitimate forensic purpose - Test to apply - Whether s 40(1)(a) of Magistrates Court (Civil Proceedings) Act 2004 applies - Right of appeal where no final order made

Legislation:

District Court Rules 2005 (WA), r 57(2)(b)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 8, s 13, s 16(1)(q), s 40
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 71, r 71A
Magistrates Court Act 2004 (WA), s 10, s 12, s 14, s 21
Restraining Orders Act 1997 (WA), s 3, s 7A(a), s 24, s 44A(1), s 64, s 72(1)(a)

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr A J Aristei

Solicitors:

Appellant	:	Not applicable
Respondent	:	Kean Legal

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

Armstrong v Saxby [2016] WADC 87
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Laurent v Fates [2015] WASCA 226
Lovelady v Griffiths [2018] WADC 180
MJH v The State of Western Australia [2006] WASCA 167
Stanley v Layne Christensen Company [2004] WASCA 50
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

BIRMINGHAM QC DCJ:

Background

In the court below, the appellant has applied for a family violence restraining order against the respondent (FVRO). The appellant has also initiated similar proceedings against her former partner, SH. The applications are brought pursuant to pt 1B of the Restraining Orders Act 1997 (WA).
The respondent is the current partner of SH.
The appellant and SH have been involved in extensive Family Court proceedings regarding the care and custody of their two children.
The FVRO applications relate to the alleged conduct of the respondent and SH towards the appellant and her children and an incident allegedly involving the respondent at the appellant's property on 9 May 2019.
The appellant's application was originally set down for a final order hearing on 11 November 2019 however, when it became apparent early in the proceedings that the matter could not proceed that day, Magistrate Young adjourned the hearing to enable it to be heard jointly with the proceedings between the appellant and SH.
The learned magistrate then proceeded to deal with a summons to produce, issued by the appellant requiring the respondent to produce certain documents.
The documents sought were:
•The respondent's Certificate III in Child Care;
•Other documents relating to the respondent's child care qualifications;
•Medical report about the respondent's milk allergy;
•Medical report about the respondent's lactose intolerance;
•Medical report about the respondent's gluten allergy;
•The respondent's…

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 KSJ v GJA

Details

AGLC: KSJ v GJA [2020] WADC 96
Case: [2020] WADC 96
Decision Date: 1 JULY 2020

CaseChat Overview and Summary

In the matter of KSJ v GJA, the appellant sought to appeal an interlocutory decision of the Magistrates Court of Western Australia concerning a summons to produce certain documents. The summons was issued under the Restraining Orders Act 1997 (WA) in the context of proceedings where the respondent had applied for a restraining order against the appellant. The primary issue before the court was whether the appellant had the right to appeal the interlocutory decision, particularly in the absence of a final order being made in the underlying proceedings.

The legal issues before the court were whether section 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004 applied to the summons to produce documents, and if so, whether the appellant's appeal was valid. The court was required to determine whether the summons served a legitimate forensic purpose and whether the appeal was permissible under the statutory provisions. The court had to balance the rights of the parties with the need to facilitate the fair resolution of the underlying proceedings.

The court held that the summons served a legitimate forensic purpose as it was necessary to determine the existence of documents relevant to the respondent's application for a restraining order. The court found that section 40(1)(a) did not apply to the summons, and therefore the appellant's right to appeal was limited. Nevertheless, the court exercised its discretion to hear the appeal due to the importance of the issues raised. The court concluded that the appeal was valid and proceeded to consider the merits, ultimately setting aside the summons to produce the documents on the grounds that it was not necessary for the fair resolution of the proceedings.

The court ordered that the summons to produce the documents be set aside, thereby resolving the immediate issue in the interlocutory phase. This decision ensured that the proceedings could continue without the impediment of an unnecessary production order, while also addressing the broader issue of the appellant's right to appeal in such circumstances.

Orders