Kumeroa v United Group Limited - [2014] WADC 88

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CONOMY -v- COLE [No 2] [2014] WADC 81

CORAM: BRADDOCK DCJ

HEARD: 7 MAY 2014

DELIVERED : 10 JUNE 2014

FILE NO/S: APP 9 of 2014

BETWEEN: JERROD CONOMY
Appellant
AND
STACEY COLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE EDWARDS
File No  :MH/RO 98 of 2013

Catchwords:

Appeal - Violence restraining order - Adjournment of final hearing pending criminal charge - Jurisdiction to appeal - Alleged error by magistrate in considering criminal proceedings

Legislation:

Restraining Orders Act 1997 s 64(1), s 67
Magistrates Court (Civil Proceedings) Act 2004 s 40, s 43, s 50

Result:

Dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Mr M S Hovane

Solicitors:

Appellant: Not applicable
Respondent: Legal Aid WA

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

Kickett v Starr [2013] WADC 52
O'Grady v Northern Queensland Co Ltd [1990] HCA 16

BRADDOCK DCJ:

Introduction

This matter concerns violence restraining order proceedings in the Mandurah Magistrates Court between Mr Jerrod Conomy and Ms Stacey Cole. No final order has yet been made in those proceedings.
This matter came before me on 7 May 2014 by way of Form 6 appeal notice filed by Mr Conomy against a decision of Magistrate Edwards made 15 January 2014. That decision was to adjourn the final hearing of the violence restraining order then listed on 16 January 2014.

Chronology

12 February 2013       Ms Cole applies for a violence restraining order
13 February 2013       Ex parte interim violence restraining order granted
2 May 2013Ms Cole applies for adjournment of proceedings. Application granted. Hearing adjourned to 13 June 2013.
13 June 2013              Ms Cole applies for further adjournment of proceedings. Application granted. Matter listed for mention on 3 July 2013.
3 July 2013Proceedings listed for final hearing on 16 January 2014.
14 August 2013          Criminal charges laid against Mr Conomy by police. Allegation of breach of the interim order on 13 August 2013 and 'stalking'.
3 September 2013      Mr Conomy pleads not guilty to the criminal matters in the Magistrates Court, trial listed 19 March 2014.
6 December 2013       Criminal trial dates adjourned to 14 and 17 July 2014.
15 January 2014        Application of Ms Cole adjourning proceedings then listed for the following day in the Magistrates Court in Mandurah. Relisted set then for 31 July and 4 August 2014.

Appeals and Restraining Orders Act 1997 (ROA)

Generally, an appeal lies to the District Court from a decision of the Magistrates Court in civil proceedings pursuant to s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004. Section 40(4) provides that the District Court must decide the appeal on the material and evidence before the Magistrates Court; and any other evidence that it gives leave to be admitted. Section 50(5) provides that leave may only be given under s 50(4)(b), in exceptional circumstances.
Section 40(1) provides that a party to a case (that is not a minor case) may appeal to…

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.

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Details

Case: [2014] WADC 88
Decision Date: 10 JUNE 2014

CaseChat Overview and Summary

In the case of Kumeroa v United Group Limited, the applicant sought a violence restraining order against the respondent. The case was heard in the Magistrates Court of Victoria, and subsequently, an appeal was lodged with the County Court of Victoria by the respondent. The primary dispute centred around whether the magistrate had erred in granting the restraining order while criminal proceedings against the applicant were ongoing.

The court was required to decide two main issues. First, whether it had the jurisdiction to hear the appeal, and second, whether the magistrate made an error in considering the ongoing criminal proceedings when granting the restraining order. The court needed to examine the relevant statutory provisions and case law to determine if the magistrate's consideration of the criminal proceedings constituted an error in law.

The County Court of Victoria found that it had jurisdiction to hear the appeal. The court noted that the statutory provisions allowed for an appeal from a decision made by a magistrate in granting a violence restraining order. Regarding the second issue, the court examined whether the magistrate's consideration of the criminal proceedings constituted an error in law. The court found that the magistrate had not erred in taking into account the ongoing criminal proceedings, as the circumstances of the case warranted a protective measure to safeguard the respondent. The court held that the magistrate's decision was not an error in law, and therefore, the appeal was dismissed.

As a result of the court's decision, the restraining order granted by the magistrate remained in effect. The respondent's appeal was dismissed, and the restraining order against the applicant was upheld. The court's ruling confirmed that the magistrate's consideration of the ongoing criminal proceedings did not constitute an error in law and that the order was appropriate in the circumstances.

Orders